LSB April 2018_Web

THE 

BULLETINApril 2018 

Volume 40 - Issue 3 

THE LAW 

SOCIETY: 

WORKING 

FOR YOU

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This issue of The Law Society of South Australia: Bulletin is 

cited as (2018) 40 (3) LSB(SA). ISSN 1038-6777 

CONTENTS 

THE LAW SOCIETY: WORKING FOR YOU 

7 Harnessing the power of the 

collective – By Stephen Hodder 

8 Support services for practitioners 

By Ethics & Practice Unit 

10 Summary of the Member 

Satisfaction Survey – By Michelle King 

14 CPD Programme tailored to meet 

members’ needs – By Natalie Mackay 

15 Making life easier for lawyers 

By Dale Weetman 

17 How the Litigation Assistance Fund 

helps people pursue claims 

By Annie McRae 

18 Membership benefits for sole & 

small firm practitioners 

By Michelle King 

22 Standing up for the profession 

By Anna Finizio 

23 Protecting practitioners against risk 

By Geoff Thomas 

24 The role of the Women Lawyers’ 

Committee – By Shelley O’Connell 

27 BankSA partnership extended 

29 What can the Young Lawyers 

Committee do for you? 

By Erica Panagakos & Melanie Tilmouth 

FEATURES 

12 Litigation in the SA fast track 

streams – By Jordan Tutton 

20 Pro Bono Mediation Information 

Service making a difference in the 

Magistrates Court – By Margaret Castles 

26 Event wrap-up: Law Society Forum 

34 Major report makes key access to 

justice recommendations to reduce 

Indigenous incarceration 

By Matthew Corrigan 

38 Event Wrap-up: Robe Country 

Conference – By John Kyrimis 

REGULAR COLUMNS 

4 President’s Message 

5 From the Editor 

6 Dialogue 

18 Members on the Move 

19 Wellbeing & Resilience 

28 Risk Watch 

29 Young Lawyers 

32 Tax Files 

37 Get in on the Act: Explaining the 

LPA’s show cause regime 

40 Bookshelf 

41 Gazing in the Gazette 

44 Family Law Case Notes 

Executive Members 

President: 

Tim Mellor 

President-Elect: A Nikolovski 

Vice President (M): T White 

Vice President (F): R Sandford 

Treasurer: 

A Michaels 

Immediate Past President: A Rossi 

Council Members: M Frayne QC 

S Hooper 

Metropolitan Council Members 

T Dibden 

S Gibbons 

M Janus 

A Lazarevich 

L Polson 

T Vozzo 

M Frayne SC V Gilliland 

F Bell 

M Mackie 

M Boyle 

M Smith 

E Shaw 

R Shaw 

Country Members 

S Minney 

(Northern and Western Region) 

P Ryan 

(Central Region) 

J Kyrimis 

(Southern Region) 

Junior Members 

R Piccolo S Hooper 

Ex Officio Members 

The Hon V Chapman, Prof W Lacey, 

Prof M de Zwart, Prof T Leiman 

KEY LAW SOCIETY CONTACTS 

Chief Executive 

Stephen Hodder 

stephen.hodder@lawsocietysa.asn.au 

Executive Officer 

Rosemary Pridmore 

rosemary.pridmore@lawsocietysa.asn.au 

Chief Operations Officer 

Dale Weetman 

dale.weetman@lawsocietysa.asn.au 

Member Services Manager 

Michelle King 

michelle.king@lawsocietysa.asn.au 

Director (Ethics and Practice) 

Rosalind Burke 

rosalind.burke@lawsocietysa.asn.au 

Director (Law Claims) 

Geoff Thomas 

gthomas@lawguard.com.au 

Manager (LAF) 

Annie MacRae 

annie.macrae@lawsocietysa.asn.au 

Programme Manager (CPD) 

Natalie Mackay 

Programme manager (GDLP) 

Desiree Holland 

THE BULLETIN 

Editor 

Michael Esposito 

bulletin@lawsocietysa.asn.au 

Editorial Committee 

D Barnfield E Olsson 

S Kljun R Earles 

P Wilkinson S Errington 

E Belperio A Siow 

B Grant A Bradshaw 

E Moran J Napier 

The Law Society Bulletin is published 

monthly (except January) by: 

The Law Society of South Australia, 

Level 10-11, 178 North Tce, Adelaide 

Ph: (08) 8229 0200 

Fax: (08) 8231 1929 

Email: bulletin@lawsocietysa.asn.au 

All contributions letters and enquiries 

should be directed to 

The Editor, The Law Society Bulletin, 

GPO Box 2066, 

Adelaide 5001. 

Views expressed in the Bulletin 

advertising material included are 

not necessarily endorsed by The 

Law Society of South Australia. 

No responsibility is accepted by the 

Society, Editor, Publisher or Printer for 

accuracy of information or errors or 

omissions. 

PUBLISHER/ADVERTISER 

Boylen 

Level 3, 47 South Terrace, 

Adelaide SA 5000. 

Ph: (08) 8233 9433 Fax: (08) 8212 6484 

Email: admin@boylen.com.au 

Studio Manager: Cindy Ridgwell 

Layout: Henry Rivera 

Advertising 

Email: sales@boylen.com.au 

Printer 

Lane Print Group 

101 Mooringe Ave, 

Camden Park SA 5038. 

Ph: (08) 8376 1188

PRESIDENT’S MESSAGE 

Opening the lines of 

communication with Members 

TIM MELLOR, PRESIDENT 

This edition of the Bulletin sets out 

something of what the Law Society 

endeavours to provide for its membership. 

The regulatory roles with which the 

Society has been invested under the Legal 

Practitioners Act tend to frame any of 

the interactions with its membership. In 

looking at the direct benefits and services 

provided as a part of your membership we 

want to inform you of another aspect of 

that relationship. 

A first step in considering those 

services is to seek information from our 

members as to their views, experiences 

and expectations. This has involved, 

in part, the Membership Satisfaction 

Survey Report undertaken last year, and 

which is considered in some detail in this 

edition. 

As an elected officer of the Society, I 

want personally to offer the possibility for 

Members to let me know their concerns. 

I would hope that members would 

already feel that they could contact me by 

telephone or email in any event. However 

I want actively to enable that sort of 

discussion. To that end I have set aside 

time on a regular basis to meet personally 

with members, either individually or as 

a group, at the Society to discuss any 

4 

THE BULLETIN April 2018 

issue relating to their practice or their 

membership in relation to which the 

Society may be able to assist. This is not a 

replacement for the usual and established 

program of meetings with committee 

chairs and members, and the suburban, 

regional and country practitioners. 

The meetings will be on an individual 

basis at the Society. I would want to do 

this with a minimum of structure. It 

would involve an initial contact with the 

Executive Officer Rosemary Pridmore 

(Rosemary.Pridmore@lawsocietysa.asn. 

au, telephone 8229 0240) to arrange 

the appointment and, ideally (but not 

necessarily) a brief indication of the topic 

for discussion. This will allow me to give 

some preliminary thought to the issues. 

Obviously, the meeting and discussion 

would be on a confidential basis. 

The Society already provides substantial 

avenues for advice and support through 

various groups including: 

• Women Lawyers’ Mentoring Scheme 

• Lawyers Support Group 

• Young Lawyers Support Group 

• Complaint Companion Service 

• Law Care. 

My intention would be to supplement 

those services. 

As an elected officer of the Society, I want 

personally to offer the possibility for Members to 

let me know their concerns. 

In the meantime the published results of 

the Members’ Survey carry a number of 

salutary messages which, I can assure you, 

are being carefully considered. The issue 

of increasing the relevance and value of 

membership of the Society is a primary 

objective. 

At this time we are also in the throes 

of a change of government. I would 

like to note the completion of term in 

the office of Attorney-General of the 

Hon John Rau SC MP. The timing of the 

elections has meant that our dealings have 

been limited. Nonetheless, I would extend 

to him the best wishes of the Society, 

and wish him well in his future roles and 

endeavours. 

We also welcome the historic 

appointment of our new Attorney- 

General, the Hon Vickie Chapman MP 

– the State’s first female chief law officer 

and Deputy Premier. The Attorney was 

an active member of the Society from 

the time of her admission to practice, 

including service on the Family Law 

Committee and Professional Development 

Committee, prior to her election to 

Parliament in 2002. We were very pleased 

that she re-joined the Society in 2014 

On behalf of the Society I extend our 

warmest congratulations and best wishes. 

I have written earlier about the vital 

interaction between the Attorney-General 

and the Society. I look forward to what I 

am sure will be a positive and productive 

relationship. B

FROM THE EDITOR 

Society launches 

‘See a Lawyer’ Campaign 

MICHAEL ESPOSITO, EDITOR 

Law Society President Tim Mellor 

recently went on ABC Radio to explain 

the vexed issue of parents financially 

helping their adult children purchase their 

first property, whether it be via a loan, a 

gift, or as guarantor. 

Taking questions from callers about 

various conundrums – including a 

dispute over a loan following a verbal 

agreement, the breakdown of a mother/ 

son relationship, and the concern of 

benevolent parents about what happens to 

their loan if their child’s marriage dissolves 

– Tim kept coming back to the same 

point: If only you had received legal advice 

at the outset, you wouldn’t have had these 

complex problems now. 

That’s one of the key messages of 

the Law Society’s new “See a Lawyer” 

campaign, which launched on 26 March 

and encourages people to see a lawyer for 

assistance with matters such as wills and 

estates, family law, personal injury, selling 

and buying franchises, and aged care 

services. 

The campaign features adverts which 

will air on radio station FiveAA over a 

three-month period and postcards being 

distributed to government agencies, 

community centres and high-volume 

traffic areas. 

The campaign will promote 

MAJOR SPONSOR 

www.seealawyer.com.au, the new portal 

for the Society’s Referral Service which 

assists members of the public to find 

lawyers who can assist with their particular 

problems or enquiries. The campaign also 

more broadly encourages the seeking of 

legal advice and services. 

The key message of the campaign is 

“Seeing a lawyer at the start can end up 

costing you a lot less time, stress and 

finances, in the long run. Can you afford 

not to see a lawyer?” 

With the rise of “do it yourself ” law 

and other professions encroaching on 

traditional legal work, it is more important 

than ever to educate people on the risks of 

not engaging legal assistance early and the 

importance of getting tailored legal advice 

that addresses your specific needs. 

This exciting campaign feeds into the 

Society’s broader advocacy work on behalf 

of the profession. Readers will learn more 

about our advocacy activities in this edition 

of The Bulletin, which aims to inform the 

profession about the many services the 

Society provides to practitioners. 

The Society is a multi-faceted association 

with numerous roles and responsibilities, 

and we have found that a number of our 

Members, and the broader profession, 

understandably do not realise the breadth 

of support we provide to the profession. 

CONFERENCE SERIES SPONSOR 

What will that DIY contract 

end up costing your business? 

A sample of some of the “See a Lawyer” 

post cards being distributed throughout SA. 

I encourage you to read this edition and 

consider if there are any services and 

benefits that you are not currently taking 

advantage of that could be of value to 

you. I also welcome any suggestions about 

how the Society can better serve the 

profession. B 

LAWCARE SPONSOR 

What will that 

verbal agreement 

really end up 

costing? 

What will that DIY will 

really end up costing? 

SMALL PRACTICE NETWORKING SERIES SPONSOR TRUST ACCOUNTING ONLINE SPONSOR YOUNG LAWYERS COMMITTEE SPONSOR 

SPONSORS AND PREFERRED SUPPLIERS 

April 2018 THE BULLETIN 5

DIALOGUE 

A round-up of recent Society 

meetings & conferences 

ROSEMARY PRIDMORE, EXECUTIVE OFFICER 

2-3 MARCH 2018 

Meetings of Law Society 

Presidents, Chief Executives of 

Constituent Bodies of the Law Council 

of Australia; Chief Executives of 

Law Societies; the Conference of Law 

Societies; and Directors of the Law 

Council of Australia 

Tim Mellor, as President, Tony Rossi as 

the Society appointed Director of the Law 

Council, and Stephen Hodder as Chief 

Executive Officer variously participated in 

the above quarterly meetings which were 

hosted by the Society. Topics discussed 

included a coordinated approach to 

responses to Federal issues (recognising 

each Constituent Body wishes to retain 

its right to speak independently on 

such issues); the LCA’s protocol for 

submissions; the process for the LCA’s 

submission to the upcoming Family Law 

Review; a review of LCA Committees; 

communication strategies; the consultation 

practices of Attorneys-General in relation 

to judicial appointments; and the timeline 

for the report of the LCA’s Justice Project 

– which is presently expected in June. 

Professor Sanford Clark, Chair of the 

Law Admissions Consultative Council 

presented a paper on a proposal for a 

long-term project, “Assuring Professional 

Competence”; and the Honourable 

Bruce Lander QC spoke as to the need 

for a national integrity commission, the 

features of the South Australian ICAC and 

differences from the NSW model. 

5 MARCH 2018 

SA Legal Assistance Forum 

Policy Coordinator, Anna Finizio 

represented the Society at a quarterly 

meeting of the SALAF, a group convened 

by the Legal Services Commission in 2010 

to provide closer cooperation, mutual 

assistance and a forum for sharing ideas 

and information regarding programs 

within the legal assistance sector of 

6 

THE BULLETIN April 2018 

South Australia. Matters discussed 

included a review by State, Territory 

and Commonwealth Governments of 

the efficiency and appropriateness of 

the National Partnership Agreement for 

achieving its objectives, with responses 

to a consultation paper due by 16 March 

2018; and timelines and arrangements for 

participation in the Review of the Family 

Law System. The various entities at the 

meeting shared and provided updates on 

the issues and projects they are currently 

working on. 


Joint Rules Advisory Committee 

Tim Mellor, Nick Anderson (as Chair 

of the Civil Litigation Committee) 

and Philip Adams represented the 

Society at a meeting of the Joint Rules 

Advisory Committee. The main focus 

of the meeting was consideration of 

draft forms for the Electronic Court 

Management System (ECMS) relating to 

the originating process, secondary process 

and interlocutory applications. Comments 

received from Society Committees were 

relayed to the JRAC. 


Meeting with Adviser to the Attorney- 

General 

Chris Kwong, Adviser to the Attorney- 

General responded to the Society’s 

request to meet with the Premier about 

the efficiency dividend imposed on the 

Courts Administration Authority that 

was included in the mid-year budget 

review. The CAA will face a funding 

reduction of $2.735 million over four 

years to 2020-21. Tim Mellor, Michael 

Esposito (Communications Manager) 

and Anna Finizio met with Mr Kwong, 

pressing the Society’s view that there 

be a significant increase in the CAA’s 

budget to allow it to operate effectively 

and that the courts/justice system are a 

frontline service of equal importance to 

other the Government funded services 

for constituents. Other issues discussed 

included the Labor Party’s response to 

the Society’s key election policy issues, 

particularly legal aid funding, funding for 

Community Legal Centres and Justice 

Reinvestment; the unacceptable delay in 

matters under the new major indictable 

reform legislation; the Government’s 

opposition to the Independent 

Commissioner Against Corruption’s 

request to be allowed to hold hearings into 

maladministration in public; the Society’s 

desire for South Australia to participate 

in the National Redress Scheme; and the 

Society’s views on policy announcements 

by the various Parties participating in the 

State election, as set out on its Election 

Watch website. 


Retail Shop Leases Advisory 

Committee 

At the invitation of the Small Business 

Commissioner (SBC), the Society 

sent an observer, David Hopkins (a 

Member of the Property Committee) 

to a meeting of the Retail Shop Leases 

Advisory Committee. The SBC, Mr John 

Chapman intends to push for the Retail 

and Commercial Leases Act (Miscellaneous) 

Amendment Bill 2017 to be reintroduced 

to the Parliament as soon as reasonably 

possible, once Parliament resumes. 


Criminal Justice Management Forum 

Co-Chair of the Criminal Law 

Committee, Craig Caldicott represented 

the Society at a meeting of the Courts’ 

Criminal Justice Management Forum. 

Matters discussed included present trial 

outcomes; and major indictable reform. 

Please note: the Society’s advocacy work is 

reported to Members via the Advocacy Notes 

e-newsletter. B


Harnessing the Power 

of the Collective 

STEPHEN HODDER, CHIEF EXECUTIVE 

The purpose of this edition of the 

Bulletin is to provide an overview of 

what the Society does for the profession. 

Most Members will at least have some 

awareness of the ethical and professional 

support we provide, our statutory 

and regulatory role, our continuing 

professional development program, our 

professional standards scheme, our various 

risk management activities, as well as 

our range of support services for lawyers 

who may need some extra assistance, be 

they new to legal practice, experiencing 

health issues, seeking counselling, or 

requiring some professional support with 

their practice. 

Of course, the Society encourages 

all legal practitioners in SA to become 

members, but I do not wish to focus on 

the financial incentives of being a member 

of the Society (although membership 

does pay for itself through discounts, 

commercial benefits and additional 

services offered). Instead, in this article I 

want to talk about the power of being part 

of an association that stands up for the 

legal profession. 

All income generated by the Society 

Scores of lawyers attend the Law Society’s legal aid rally 

goes back to the profession. Naturally, 

higher membership allows the Society to 

improve its services to Members. But more 

than that, it amplifies the voice of the 

profession. It strengthens our advocacy on 

behalf of all practitioners. 

The Society, through its staff, governing 

council and committees, consistently and 

tirelessly advocates for the interests of 

the profession and for the promotion and 

preservation of the rule of law. 

We regularly consult with the courts 

on court rules, fees and costs; we make 

numerous submissions on proposed 

legislation and legal inquiries; we make 

representations to politicians on matters 

that directly affect legal practice; we appear 

at parliamentary inquiries into key legal 

reforms; we lobby for a stronger justice 

system via budget and other submissions, 

and much more (you can read more about 

our advocacy work on page 22). 

We are always working to make life 

better for practitioners. As an example, 

last year the Society initiated a review 

into easing the regulatory burden on the 

profession. Internally, the Society has 

developed a range of new initiatives to 

lighten the administrative load, but we 

are also investigating the profession’s 

compliance responsibilities and obligations 

with the ultimate objective of removing 

the unnecessary red tape that hinders 

practitioners. 

We have always promoted and protected 

the reputation of lawyers and, through 

submissions, media and administrative 

services, encouraged members of public 

to engage the expertise of lawyers. On 

26 March, the Society launched its “See a 

Lawyer” campaign to encourage members 

of the public to engage a lawyer for any 

legal matters or disputes. 

In this edition we have a summary of 

the most recent Member Satisfaction 

Survey. It indicates that while the Society 

is performing well, there is of course 

room for improvement. We are using the 

feedback from the survey to help shape 

new services, improve existing ones and 

ensure everything we do is of relevance 

to Members. We welcome feedback and 

we encourage all Members to have their 

say on issues affecting the profession. 

If there’s anything you want to change, 

if you want your voice to be influential, 

I encourage you to become actively 

involved in the Society. One of the best 

ways of doing this is to join one of our 

many special interest committees. Our 

committees are regularly consulted on 

issues and the majority of our submissions 

and positions are informed by consultation 

and collaboration with committees. 

Another way to get involved is to 

nominate for a position on the Council 

later in the year. 

The Society has a proud history of 

supporting and standing up for the 

legal profession since 1879. We will 

continue to represent the profession 

with vigour, and we encourage 

practitioners to maximise the power of 

our collective voice by being actively 

involved and having your say. B 



Support Services for 

Practitioners 

ETHICS AND PRACTICE UNIT 

The Law Society’s Wellbeing & Resilience Guide 

Depressive symptoms among lawyers 

and law students have reached 

startling levels, with lawyers experiencing 

the highest incidence of such symptoms 

in comparison to other professions (Law 

Council of Australia website - fi nding from the 

2007 Beaton Consulting and beyondblue national 

depression initiative). This is not something 

to be ashamed of or ignored. Mental 

health is no longer a taboo topic and with 

more awareness comes greater support 

from and for the legal profession. 

The Society recognises the stressful 

nature of legal practice and offers a 

number of services to assist practitioners 

to reduce the pressures of practice and 

improve their overall health and wellbeing. 

LawCare is a confidential service 

available to practitioners and members 

of their immediate family, as well as 

to law students, to assist with personal 

problems that may be interfering with 

work performance. Dr Jill is the LawCare 

counsellor and she can be contacted on 

8110 5279 to make an appointment. Dr Jill 

is experienced in the treatment of social 

and psychological problems which may 

be associated with stress, alcoholism, drug 

abuse, gambling addiction, matrimonial 

difficulties, family crisis or career 

problems. The Society will cover the gap 

payments of two consultations of up to x 

hours per financial year. 

For practitioners seeking the advice 

of another practitioner, the Society has 

established the Lawyers’ Support Group. 

This gives practitioners access to a panel 

of experienced practitioners willing 

to assist colleagues with personal and 

professional problems. 

For young lawyers in particular, the 

Society together with its Young Lawyers’ 

Committee has established the Young 

Lawyers’ Support Group which is a panel 

of experienced practitioners who are 

willing to assist young lawyers who may 

require independent guidance. 

Where you are notified of a complaint 

having been made about you to the Legal 

Profession Conduct Commissioner, you 

can seek support from the Lawyers’ 

Complaint Companion Service with an 

hour of free advice from an experienced 

practitioner. The Society recognises that 

such a complaint can be distressing for 

practitioners and encourages practitioners 

to utilise this service to ease the 

psychological burden. 

The Society has a Wellbeing and 

Resilience Committee to raise awareness 

of issues relating to mental health and 

wellbeing of practitioners, including 

psychological distress and depression. 

The goal of the Committee is to educate 

practitioners on the services available and 

attempt to counteract the poor record of 

mental health in the profession. 

Another initiative of the Society, 

in conjunction with the Professional 

Standards Council and Wellbeing & 

Resilience Committee, has been the 

development of the Wellbeing and 

Resilience Guide which contains very 

useful information to achieve optimum 

health, particularly as it relates to legal 

practitioners. This is available on the 

Society’s website, as is the Wellbeing & 

Resilience programme. That programme 

teaches practitioners about the signs and 

symptoms of mental health and addiction 

challenges, the stigma around mental 

health issues with specific reference to the 

legal profession, treatment options and 

coping strategies. The programme is very 

insightful, with members of the profession 

sharing their own experiences. 

The Society’s Small Practice Committee 

organises many events throughout the year 

for sole practitioners and practitioners in 

small firms, which represent the majority 

of South Australian law practices. The 

purpose of these events is to provide 

practitioners with an opportunity to build 

and maintain systems of support. 

There are five Small Practice CPD & 

Networking Drinks held each year. Each 

event is free and held in different areas 

to accommodate as many practitioners as 

possible. Those events also include a half 

hour free CPD on Legal Ethics. 

There are also monthly “Coffee Breaks” 

held in different areas which provide 

opportunities for informal gatherings 

between practitioners. These are advertised 

in InBrief, the weekly e-newsletter. 

If you are a practitioner in a large firm 

and seeking outside support, you are 

encouraged to use the various support 

services offered by the Society. 

If you have an ethical or trust accounting 

query, please do not hesitate to contact 

the Society’s Ethics & Practice Unit on 

8229 0229. The Ethics & Practice Unit has 

legal officers and law practice compliance 

investigators who are available to assist 

practitioners to understand and comply 

with their professional obligations and 

minimise the risk of disciplinary action. 

The Society’s website also has a variety 

of links to Wellbeing and Support 

resources which we encourage you to read. 

There is a lot of support for practitioners 

dealing with depressive symptoms and 

experiencing difficult times and the Society 

urges all practitioners to seek support and 

utilise the various services available. B 

8 

THE BULLETIN April 2018

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MEMBER SURVEY 

MEMBER SURVEY: SATISFACTION 

LEVELS REMAIN PLEASINGLY HIGH 

MICHELLE KING, MANAGER, MEMBER SERVICES 

The Society is pleased to 

release the results of its third 

biennial Member Satisfaction 

Survey. 

Conducted in September 2017, 364 

Members (11% of the Society’s 

Membership) participated in a member 

satisfaction survey, with 63% of 

respondents reporting satisfaction with 

the Society’s performance (including 32% 

who are delighted). Our Young Members 

(aged 35 and under) and New Members 

are the most satisfied Members, however, 

there are no particular membership groups 

whose satisfaction levels are lower than 

the general population. 93% of Members 

say they are likely to continue their 

membership with the Society over the 

next 12 months (up 3% points since 2015) 

including 70% that say they definitely 

will (up 7% points since 2015). 50% of 

employers pay for the membership fees of 

their employees. 

Most survey satisfaction levels are 

consistent with 2013 and 2015 results. A 

disappointing finding is that satisfaction 

with Special Interest Committees has 

dropped since 2015. Having said that, 

dissatisfaction levels have also decreased 

indicating a shift towards more Members 

now considering themselves “neutral”. 

The Society will raise this issue at the 

annual Committee Chairs meeting and 

the Society plans to conduct a separate 

survey of Committee Members to seek 

any additional feedback and suggestions 

as to how these issues may be addressed. 

Whether this relates to committees across 

the board or only one or two is presently 

unknown. 

The Society continues to be the most 

used CPD provider by Members (44% of 

Members), followed by in-house (28%) 

and then commercial providers (15%). 

19% of Members indicated that they feel 

the Society’s CPD is much better than our 

competitors’ products. 70% of Members 

are satisfied with the Society’s CPD 

(including 49% who are delighted) 

This report gives you a snapshot of what 

you said about the Society. Whilst results 

across the board are generally good, there 

is always room for improvement and 

the Society is committed to continuing 

to support Members’ needs into the 

future. We encourage feedback from 

Members and will give consideration to all 

suggestions received. 

MEMBER SATISFACTION 

DELIGHTED 

SATISFIED 

NEUTRAL 

DISSATISFIED 

40 

30 

20 

10 

0 

38 

32 

2013 

14 

16 

MOST IMPORTANT PRODUCTS & 

SERVICES FOR MEMBERS 

1. Ethical & Professional Support 

68% of Members are satisfied with the 

Society’s Ethical and Professional Support 


68 % 

SAT ISF IE D ME MB E R S 

2013: 76% satisfied 



40 

30 

20 

10 

0 

35 

28 

2015 

19 17 

40 

30 

20 

10 

0 

32 31 

2017 

22 

15 

2. Performance of statutory and 

regulatory roles 

70% of Members are satisfied with 

the Society’s performance of statutory 

and regulatory roles (Ethics & Practice, 

Professional Indemnity Insurance Scheme 

and Law Claims) 


70 % 


2013: NA 

2015: NA 


10 


MEMBER SURVEY 

3. Online Renewal 


Society’s Online Renewal (Practising 

Certificate, Membership, Professional 

Indemnity Insurance, Professional 

Standards Scheme) 


86 % 


2013: NA 

2015: NA 


4. Continuing Professional 

Development 


the Society’s Continuing Professional 

Development 


70 % 





5 Professional Standards Scheme 


Society’s Professional Standards Scheme 


66 % 





PUBLICATIONS 

Satisfaction with Society publications 

is a key strength, with all publications 

having more than 50% satisfaction 

amongst Members. At least a third 

of Members are “delighted” with 

all publications. Dissatisfaction rates 

remain low, with all publications well 

below 10% dissatisfaction. 

These results are consistent with 

the 2013 and 2015 surveys, where 

publications were labelled as the 

highest performing service both years. 

THE TOP 5 VALUED SOCIETY 

PUBLICATIONS ARE: 

INBRIEF 

85 % 

BULLETIN 

79 % 

IN THE NEWS 

72 % 

WHAT’S ON 

RISK ALERT 

72 % 

SATISFACTION LEVELS 

InBrief 


the Society’s InBrief e-newsletter 


Bulletin 


the Society’s Bulletin (hardcopy) 


In the News 


the Society’s In the News email 


What’s On 


the Society’s What’s On email 


Risk Alert 


the Society’s Risk Alert email 


HEALTHY 

WORK-LIFE 

BALANCE 

68 % 

TOP 5 ISSUES & CHALLENGES FACING THE PROFESSION 

HIGH WORKLOADS 

AND TIME 

PRESSURES 

STRESS, 

DEPRESSION AND 

OTHER MENTAL 

HEALTH ISSUES 

WHAT MEMBERS WANT THE SOCIETY TO FOCUS ON 

BEING FINANCIALLY 

SUSTAINABLE / 

MAKING PROFIT 

AFFORDABLE 

ACCESS TO 

JUSTICE 

While the main issues and challenges facing the profession have remained similar to 

previous years, public perception of lawyers (up 12% points) and stress, depression and 

other mental health issues (up 7% points) saw the biggest increase since the 2015 survey. 

67 % 

AGREE 

88 % 

AGREE 

60 % 

AGREE 

62 % 

AGREE 

79 % 

AGREE 

1. Lobbying for better outcomes for the legal profession in SA 

67% agree that the Society effectively lobbies and advocates on 

behalf of the profession 

(including 26% who strongly agree) 

2013: 80% agree 2015: 70% agree 2017: 67% agree 

2. Informing Members about changes in legislation and key 

issues affecting the profession 

88% agree that the Society keeps Members well informed about 

changes in legislation and key issues affecting the profession 

(including 41% who strongly agree) 


3. Supporting Members’ needs 

60% agree that the Society has a good understanding of 

Members’ needs (including 12% who strongly agree) 


4. Providing CPD 

62% agree that the Society is the leading provider of Continuing 

Professional Development (including 27% who strongly agree) 


5. Making proactive submissions relating to the profession, 

justice and legislation 

79% agree that the Society makes proactive submissions relating 

to the profession, justice and legislation (including 36% who 

strongly agree) 



CIVIL LITIGATION 

Litigation in the SA Fast Track Streams 

JORDAN TUTTON, ASSOCIATE TO THE HONOURABLE JUSTICE WHITE, FEDERAL COURT OF AUSTRALIA 

The Supreme and District Courts 

established the Fast Track streams of 

litigation in late 2014. 1 Recently published 

research finds that, for the most part, 

practitioners who have used the Fast Track 

believe that the process saved their clients 

substantial amounts of time and money, 

in comparison to litigation in the ordinary 

course. 2 

One practitioner comments: 

the huge advantage is we issued proceedings and 

we were before the Court having an argument 

and getting a judgment within probably a two to 

three-month period. Now … if we were in the 

normal stream, that would not have occurred 

for 18 months. So, the signifi cance for our 

client was that he was due [between 100,000- 

150,000] on work that he had done… That 

had been outstanding for six to eight months. 

He’s got cash fl ow needs and the prospects of 

spending another 18 months in the system to get 

your [100-150] grand compared with getting 

it in three months… It’s a no brainer when 

you think about it … It cured his cash fl ow 

problem. 

Justice Doyle has described “[t]he 

public concerns over the courts’ ability 

to determine commercial disputes in an 

efficient and proportionate manner” as 

“notorious”. 3 Writing in the Bulletin in 

2013, Dr Joe McIntyre observed that one 

of Doyle CJ’s final interviews “and the 

first interview of … Kourakis [CJ] … had 

in common a central focus on the need to 

fundamentally reform civil litigation” due 

to the costs of litigation. 4 Fast Track seems 

to offer a solution to these concerns for 

some matters. 

HOW IS THE FAST TRACK DIFFERENT? 

The Fast Track was designed to result 

in “more expeditious and less expensive 

hearing and determination of simpler 

disputes.” 5 It is intended for “straight 

forward cases” 6 – such as those where 

there are no “complex and controversial 

interlocutory steps”. 7 A case is prima facie 

eligible if (a) “the combined quantum 

of the claim and of any counter claim 

does not exceed $250,000”; 8 and (b) it is 

expected that no more than three trial days 

are required. 9 (It should also be noted that 

the Fast Track lowers the threshold for 

recovering costs to $25,000, 10 compared 

to the District Court civil jurisdiction 

threshold of $60,000.) 11 

As part of the research, I spoke with five 

practitioners involved in at least two Fast 

Track matters. Generally, the practitioners 

described two key differences in Fast 

Track litigation in comparison to ordinary 

litigation in the Supreme and District 

Courts. 

First, the practitioners described pre-trial 

hearings and trial dates as being fixed at 

a much earlier stage in litigation. For Fast 

Track matters, an Initial Hearing is fixed by 

the Registrar “usually… approximately one 

month after the pleadings have closed”. 12 

At that hearing, the docketed judge will fix 

a pre-trial hearing date and trial week. 13 A 

practitioner commented upon the effect 

of that hearing: 

often enough, the issues are narrowed 

even further by [the] process. And so the 

overwhelming theme is that the trial focuses both 

the mind and the honesty of the parties and so 

anything that can get them to that point sooner 

rather than later is going to … bring the matter 

to an end, which everyone knows is the cheapest 

way to do it. 

Second, they tended to discuss how, in 

the Fast Track, judges are more actively 

involved in case management. The 

parties engage with a docketed judge 14 

on issues that will permit effective case 

management. 15 The presiding officer may 

assist with “identif[ying] the real issues 

in dispute” 16 and making directions for 

“interlocutory steps and evidence”. 17 One 

practitioner described the effect of having 

a judge actively manage the case when the 

matter transferred into the Fast Track: 

If we had had the involvement of His Honour 

at an earlier stage in the matter … then it 

would have resolved. Ultimately, we settled on 

… better terms than we had been prepared to 

settle [on] throughout the conduct of the matter. 

But-for the belligerence of the defendants [it 

would have settled]. 

These differences were said to have 

increased the parties’ focus on important 

and critical issues earlier in the litigation; 

and increase pressure to settle at an earlier 

stage. 

WERE THE FAST TRACK CASES RESOLVED 

MORE QUICKLY AND CHEAPLY? 

Four of the five practitioners interviewed 

believed that their Fast Track matters were 

resolved more quickly and inexpensively 

than they would have expected in the 

ordinary course. 18 Those practitioners 

would all use the Fast Track again for a 

suitable case. 

There were several instances where 

interviewees strongly believed that the Fast 

Track had saved their client substantial 

amounts of time and money. These 

benefits were described as particularly 

acute in cases where there was believed 

to be a weak, or no available, defence. 

Another practitioner remarked: 

the whole system there is designed to get the 

matter to trial as quickly as possible because 

otherwise you get bogged down for 12 months 

[to] three years in circumstances where there 

really is no genuine defence, it’s just that they 

can’t pay; [the defendant is] trying to delay the 

time of payment. 

One practitioner believed that his/her 

cases were resolved with no difference 

in timeliness or cost. That practitioner 

was critical of judicial case management 

and noted that it did not positively 

affect how he/she conducted litigation. 

Rather, the interviewee believed that 

demonstrating compliance added to 

the overall cost to be charged to a client. 

For this practitioner, the Fast Track 

had the extra burden of requiring him/ 

her to learn a set of rules which existed 

additional to a multitude of other court/ 

tribunal rules which touched on his/her 

practice. 

FUTURE USE OF FAST TRACK 

There has been limited use of Fast 

Track by the profession. On the available 

District Court data, there were only 23 

Fast Track cases in the first 18 months 

of its operation. The research suggests 

that not all litigators may be aware of the 

stream, and those who are aware may not 

know much about Fast Track practice, or 

whether it actually can deliver faster and 

cheaper dispute resolution. A practitioner 

(quoted above) commented: 

12 


CIVIL LITIGATION 

Practitioner: [N]o one ever says to me you 

know, “I’ve got your summons… 

I’ll be fi ling a defence… should 

we consider fl ipping this one into 

Fast Track?” It’s never raised in 

any of the proceedings that I issue 

in the Supreme or District Court. 

No one ever brings it up. I don’t 

raise it with plaintiffs… none of 

my clients have received summons 

which have been issued in that 

Stream. I just don’t think it’s on 

the radar. 

Interviewer: Yep. Do you think if it was on 

their radar, more people would be 

likely to use it? 

Practitioner: Anything that can get through.… 

I think if there were more – if 

it was more widely known or 

the benefi ts were known or 

practitioners had the experience 

of it, then I think they would be 

willing to use it more. 

For practitioners and parties in these 

straightforward disputes, the research 

findings are, as a whole, encouraging. 

In the cases studied, the Fast Track 

generally was perceived to have produced 

a substantially faster and cheaper result for 

parties to the disputes. B 

Endnotes 

1 See Fast Track Rules 2014 (SA); Fast Track 

Supplementary Rules 2014 (SA). 

2 Jordan Tutton, ‘Litigation in the South Australian 

Fast Track Streams’ (2017) 6(3) Journal of Civil 

Litigation and Practice. That paper includes detailed 

research findings and information on the 

research method. 

3 PPG Development Pty Ltd v Capitanio (2016) 126 

SASR 307 [79]. 

4 Joe McIntyre, ‘A Framework for Civil Justice 

Reform Part I: Theory’ (2013) 35(7) Law Society 

of SA Bulletin 26, 26. 

5 Courts Administration Authority of South 

Australia, Fast Track Stream . 

6 Fast Track Rules 2014 (SA) r 3(b). 

7 Fast Track Supplementary Rules 2014 (SA) r 8(1)(d); 

see also r 8(1)(e). 

8 Fast Track Rules 2014 (SA) r 10(2)(a). See r 11. 

9 Fast Track Rules 2014 (SA) r 10(2)(b). These 

criteria do not prevent proceedings from being 

transferred into the Fast Track on application. 

10 Fast Track Rules 2014 (SA) r 36(1). 

11 District Court Act 1991 (SA) s 42; District Court 

Rules 2006 (SA) r 263(g). 

12 Courts Administration Authority of South 

Australia, above n 11. See Fast Track Rules 2014 

(SA) r 17(1); Fast Track Supplementary Rules 2014 

(SA) r 10(1). 

13 Fast Track Rules 2014 (SA) r 17(3)(h), (i); see also 

r 17(2). 

14 Fast Track Supplementary Rules 2014 (SA) r 

10(2) states that ‘an Initial Hearing … will 

generally be conducted by a Judge’, rather than 

a Master. Neither set of rules nor the Courts 

Administration Authority expressly state that 

the case is docket managed, although that may 

be implied by the level of case management 

described by those sources. Again, although the 

interviews did not provide data on the presiding 

officer for every single case, all interviewees 

stated or suggested that their case was docket 

managed. 

15 See Fast Track Rules 2014 (SA) r 17(3), (4). 

16 Fast Track Rules 2014 (SA) r 17(3)(b). 

17 Fast Track Rules 2014 (SA) r 17(3)(f); see r 17(4). 

18 One interviewee, who attributed the faster 

and cheaper resolution to the approach of 

the judge, could not state whether the more 

active approach was adopted because it was 

a Fast Track case. However, the practitioner 

did describe the highly active approach as 

unexpected in the ordinary course of litigation. 

College 

Tours 

Senior School 

Thursday 17 May, 9.30am 

Junior School and 

Ignatius Early Years 

Thursday 24 May, 9.30am 

Book online at ignatius.sa.edu.au 

CRICOS no: 00603F 

Go, set the world alight.


CPD programme tailored to 

meet Members’ needs 

NATALIE MACKAY, PROGRAMME MANAGER (CPD) 

The Society has been providing CPD 

for the legal profession since at least 

1965. The key aim of the CPD programme 

is to provide quality learning opportunities 

for Members to enhance and expand the 

skills and knowledge they require in order 

provide high quality services to their clients. 

The Society’s programme is developed 

in close consultation with the Society’s 

CPD Reference Advisory Group. This 

group comprises senior members of the 

profession including Judges, barristers and 

lawyers from various backgrounds and 

interests that are determined to provide 

a broad and high-quality programme that 

meets the requirements and needs of the 

profession. The programme also relies 

heavily on feedback and suggestions from 

our numerous committees, CPD attendees 

and our Members. 

In the 2017 calendar year the Society 

provided over 250 hours of CPD in a 

variety of formats including short 1-1.5 

hour seminars, half-day and full day 

workshops and two-day conferences. 

Nearly all of our short seminars are 

broadcast via webinar providing easy access 

to Members, wherever they are located. 

Some of our major events include the 

Country Conference and Update, Small 

Practice Conference, Succession Law 

Conference, Criminal Law Conference, 

Trust Symposium and of course the Legal 

Forum. The Society’s committees are 

heavily involved in the development of 

these major events and this input ensures 

each event is of a very high quality and 

value to the profession. Delegates tell us 

that these sessions are of significant benefit 

not only for learning and development but 

also for networking and camaraderie. 

Our most recent Legal Forum held 

on 15-16 February 2018 at Adelaide 

Convention Centre hosted almost 800 

delegates. The Forum is an opportunity for 

Members and non-members to attend a 

selection of sessions that enables all CPD 

points to be covered over the two days. 

There are 30 sessions provided and these 

cover all areas of practice. 

When attending CPD hosted by the 

Society, we maintain your attendance 

record and make it available to you through 

your profile page on the Society’s website. 

This helps Members keep track of their 

MCPD units against their mandatory 

requirements. If randomly selected to be 

audited for MCPD compliance and you 

have completed all MCPD units through 

the Society, you are then not required to 

provide any further evidence, making the 

audit process painless. 

It is important to remember that the 

Society is a member-based organisation, 

which is driven to tailor its CPD 

programme to suit the needs of our 

Members, rather than simply offering 

the most profitable options, as many 

other providers do. We are proud to be 

price competitive. All revenue from the 

Society CPD programme goes back into 

the profession through advocacy work, 

Members’ services, support services, free or 

subsidised events and other work you will 

read about in this edition of the Bulletin. 

I encourage you to support your own 

Society programme in preference to other 

providers, whether it be attending or 

presenting at a CPD session or suggesting 

topics for future sessions. There are 

several highly informative CPD seminars, 

conferences and workshops coming up in 

the near future which I encourage you to 

consider attending. 

Check out our website, InBrief 

e-newsletter and What’s On e-newsletter 

for upcoming CPD sessions. B 

Thankyou for supporting the 

Law Society's CPD Program 

.1.:.1.:.H

Making life easier for lawyers 

DALE WEETMAN, CHIEF OPERATIONS OFFICER 


The Society understands the heavy 

regulatory burden on the profession, 

and while it continues to advocate to 

reduce these burdens where possible, 

we are also continually looking for ways 

to streamline processes, implement new 

tools and provide better information to 

assist practitioners manage their regulatory 

obligations, giving them more time to focus 

on the day-to-day practice of law. Some 

new services include: 

Online Resources Hub 

The Online Resources Hub brings 

together numerous guidelines, articles and 

other information and resources from 

throughout the Society into one centralised 

and searchable location on the website. 

It contains more than 180 articles and is 

continually growing. Whether you have 

questions about starting a new practice, 

limitation periods, costs, risk management 

strategies or ethical obligations, the Society’s 

new Resource Hub is a great place to turn 

to. We encourage you to jump on and have 

a browse. Searches can be made using 

common search buttons or by entering your 

own search terms in the search bar. 

Access the Resource Hub at 

lawsocietysa.asn.au/resources or from 

our website search the word “Resources” 

Online Combined Trust Account 

Calculator & Notice of Withholding 

Form 

The Society will be launching an Online 

CTA Calculator on 31 May. Twice each 

year, within 14 days after 31 May and 30 

November, money must be deposited from 

each Law Practice’s general trust account 

into the CTA. The amount of the required 

deposit is calculated by means of a formula 

provided in the Legal Practitioners Act. If 

the law practice fails to make the required 

deposit by the due date, or fails to provide 

a written notice of withholding, it may be 

liable to pay interest on the outstanding 

amount. The new CTA Calculator, which is 

free for Members, will help law practices to 

complete the calculations faster and more 

accurately, reducing the incidence of error 

and subsequent non-compliance. A simple 

online form has also been developed for 

Law Practices to provide a written notice 

of withholding when required. More 

details about these two online tools will be 

sent out to law practices prior to the next 

reporting period. 

Members on the Go - New Mobile 

Website 

The new “Members on the Go” mobile 

website provides members with quick 

access to a variety of useful resources for 

Lawyers while out of the office. “Members 

on the Go” contains quick access to 

searchable directories (including contact 

details for Law Practices, Barristers and 

Courts), important dates, Court Case Lists, 

publications and more. This new website 

for Members will be launched in April. 

Annual Renewal Improvements 

The annual renewal of Practising 

Certificates, PI Insurance, Membership 

and Professional Standards Scheme 

Participation is something that the Society 

works hard to improve every year. Further 

improvements have been made this year to 

simplify the process, particularly for those 

managing a Law Practice. Payment of Law 

Society Membership fees by automatic 

credit card instalments is now available to 

Members. More information about this will 

be available closer to renewal time. 

Other similar service improvements in 

recent times include: Online lodgement of 

Irregularity Reports (www.lawsocietysa. 

asn.au/irregularity); Updated and 

digitalised regulatory and other forms 

(www.lawsocietysa.asn.au/Forms); 

Online Career Centre, providing tools 

and connecting employees and employers 

within the Legal Profession; Updated 

Profile Page, providing members 

easy access to access their Practising 

Certificates, admission details, invoices, 

CPD records and more; New Referral 

Service website and marketing campaign 

encouraging people with a problem to see a 

lawyer ( seealawyer.com.au). 

In addition to these services, the Society 

is continually working to find internal 

efficiencies and cost savings in order to 

maximise the resources being allocated to 

services and activities that matter most to 

members. 

The Society encourages any suggestions 

from Members about how the Society 

can help them. Members can send 

their suggestions to Chief Operations 

Officer Dale Weetman: 

dale.weetman@lawsocietysa.asn.au. B 

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Membership highlights 

KATE WALKLEY, ASSISTANT MANAGER, MEMBER SERVICES 

The Society is the voice of the South Australian legal 

profession. In 2017 we delivered results for Members in the 

following key areas: 

ADVOCACY & LOBBYING 

Lobbying for positive outcomes for the legal profession 

in SA 

The Society: 

• Made 96 Submissions to government and other key 

organisations, with extraordinary support from its Special 

Interest Committees 

• Participated in the Legal Aid Matters campaign 

• Established an Equality, Diversity & Inclusion Committee 

and signed up to an Equality and Diversity Charter 

• Adopted the National Model Gender Equitable Briefing 

Policy of the Law Council of Australia 

• Launched the Women Lawyers’ Mentoring Program 

• Advocated on behalf of the profession in the form of the 

State Budget Submission and subsequent scorecard 

• Represented the views and interests of South Australian 

practitioners at State and national level 

PREMIUM CPD 

CPD by practitioners and specialists, for practitioners 

The Society: 

• Held 75 CPD activities, including the Law Society 

Forum in February, which attracted almost 800 practitioners 

over two days 

• Ran four free CPD sessions 

• Hosted the National Access to Justice and Pro Bono 

Conference in conjunction with the Australian Pro Bono 

Centre and the Law Council of Australia 

QUALITY PUBLICATIONS 

Informing Members about changes in legislation and 

key issues affecting the legal profession 

The Society: 

• Launched Advocacy Notes e-newsletter – a snapshot of the 

latest news and advocacy from the Society 

• Commenced What’s On! e-newsletter – featuring all Society 

CPD and Networking events 

• Commenced Compliance News e-newsletter for trust 

accounting staff & designated persons 

• Commenced In the News – daily e-newsletter advising 

current media items with a legal perspective 

• Received particularly high member satisfaction ratings for 

InBrief and The Bulletin 

WELLBEING & RESILIENCE 

Support for you and your family 

The Society: 

• Made 86 referrals to members of the Society’s Support 

Groups or to Dr Jill (via the LawCare Coordinator) 

• Launched the Health & Wellbeing Online Program 

• Promoted mental health and wellbeing by hosting the 

“Great Debate” during Mental Health Week 

• Published a Wellbeing & Resilience guide 

PROFESSIONAL ADVICE & SUPPORT 

The Society provides numerous support 

services including: 

• Specialist trust accounting, practice and ethical support. 

• Lawyers Support Group and Young Lawyers Support 

Group. 

• Complaints Companion Service. 

• Practitioner Alerts. 

• Indigenous Law Students’ Mentoring Scheme 

COMMUNITY ENGAGEMENT 

Raising the profile and reputation of the legal profession 

The Society: 

• Marked 25 years of the Litigation Assistance Fund assisting 

civil claimants in South Australia 

• Coordinated 28 teams in the Mock Trial Competition 

• Assisted 122 members of the community through the 

Advisory Service 

• Made over 29,500 referrals of members of the public to 

legal practitioners, through the Legal Referral Service 

SOCIAL & NETWORKING OPPORTUNITIES 

Connecting you with the legal profession 

The Society: 

• Hosted a special event to recognise the start of the new 

legal year which attracted extremely positive responses 

from all attendees 

• Re-introduced the Medico Legal Dinner 

• Coordinated 53 Social & Networking events for Members 

• Hosted small practice events 

• Hosted young lawyer events 

• Reached out to country practitioners via visits by the 

President and Chief Executive to each of the three country 

districts 

16 


FEATURE 

How the Litigation Assistance Fund helps 

people pursue legitimate civil claims 

ANNIE MACRAE, FUND MANAGER, LITIGATION ASSISTANCE FUND 

If you have clients with civil claims 

(seeking proceeds of some sort) 

who are struggling to pay their fees or 

disbursements, the Litigation Assistance 

Fund (LAF) may be able to help. 

LAF is a charity which exists only to help 

people fund their legal cases. The Society 

acts as the Fund’s trustee. LAF began 

operations 25 years ago with a grant of 

$1 million but since then has not received 

any further external funding. LAF has a 

self-sustaining financial model, meaning 

that when cases supported by LAF are 

successful, LAF receives a relatively small 

portion of the case proceeds. All such 

revenue is then used for the continued 

operation of the Fund, i.e. helping further 

litigants. 

Day-to-day LAF is run from the Society 

by me and my Administrative Assistant, 

Jane Robinson. In the background are 33 

practitioners from around the profession 

who volunteer their time to assess the 

funding applications received. They are 

all experienced practitioners who are 

appointed by the Society’s Council. LAF 

is governed by a Board, currently chaired 

by Jo-Anne Deuter of Anthony Mason 

Chambers, with Deputy Chair Peter Jackson 

of Xenophon & Co Lawyers. 

How do you know whether or not LAF 

may be appropriate for a particular client’s 

case? The matter cannot be a criminal 

charge or a family law matter, and the 

client must be seeking to obtain proceeds 

of some sort (and which cannot be merely 

a costs order). Usually the client must be 

a resident of South Australia, and any 

Court action would need to take place 

in South Australia. The client must also 

meet a Means Test and a Merits Test – 

both of which can be complex. LAF’s 

Manager Annie MacRae therefore invites 

any practitioners to contact her to discuss 

the Tests in relation to any potential 

applications. To summarise these Tests: 

• a client can own an unmortgaged home 

and car, and have an annual family 

income of $150,000, and meet the 

Means Test; 

• the Merits Test is LAF’s assessment 

of the likelihood that the case will be 

successful, i.e. that proceeds will indeed 

be achieved by the client. 

In cases where the solicitors and counsel 

(if any) are acting on a no win, no fee basis, 

funding can be sought for disbursements 

only. That might include court fees, 

transcript fees, witness fees, medical reports 

or other types of expert reports, etc. In 

cases where the solicitors and counsel are 

NOT acting on a no win, no fee basis, 

funding can be sought for these fees as well 

as for disbursements. Either way, funding is 

considered/granted on a stage-by-stage basis 

throughout the life of the case. A funding 

application can be made to LAF at any stage 

in a matter, and the amount sought can be as 

little or as much as is wished. 

If the client is ultimately not successful 

in obtaining proceeds, then LAF seeks no 

reimbursement or recovery whatsoever. 

To learn how to make an application, and 

generally to find out more, please visit the 

LAF page on the Society’s website, 

or contact Annie MacRae: 

E: Annie.MacRae@lawsocietysa.asn.au 

T: (08) 8229 0263 

ANDREW BARNES 

We are available to facilitate private mediation or a 

conciliation style conference in family law matters. 

SHARON THOMAS 

Andrew is a nationally accredited mediator and has over 35 years experience as a family lawyer. 

Sharon was a Registrar at the Family Court of Australia from 1999 until 2012. Sharon has conducted thousands of hours 

of conciliation conferences and has also undertaken numerous mediation training courses provided by the Family Court. 

Our offices are designed to accommodate mediation. We have 5 conference rooms available which means there is sufficient space 

for parties and solicitors to confer individually and in group sessions. There is no additional charge for the use of our offices. 

Level 4/420 King William Street, Adelaide SA 5000 P 08 8110 2302 F 08 8212 2646


Membership Benefits for Sole 

& Small Firm Practitioners 

MICHELLE KING, MANAGER, MEMBER SERVICES 

Sole and small practices represent 90% 

of practices in South Australia. Nearly 

one in three practitioners in South Australia 

work in a sole or small practice. The 

Society and the Small Practice Committee 

are committed to providing valuable 

benefits to Members running or working in 

these practices to support them throughout 

their career. 

NETWORKING NETWORKING 

NETWORKING 

A key focus of the Small Practice 

Committee is providing strong networking 

opportunities. Networking is important for 

all professionals but if you work in a small 

business (or on your own) it is extremely 

important! It involves meeting and getting 

to know people who you can assist, and 

who can potentially help you in return. 

Discussing common challenges opens 

the door to valuable ideas and guidance. 

Networking is a great opportunity to 

exchange knowledge and stay up-to-date 

with the latest industry developments. 

Regular networking helps to keep you 

top of mind when opportunities such as 

referrals come up. Finally, and perhaps 

most importantly, networking gets you out 

of the office and talking to people, which is 

vital for your mental health and wellbeing. 

The Small Practice Committee hosts 

a number of networking events for 

Members: 

• The Small Practice CPD & Networking 

events in the city, northern, southern, 

eastern and western suburbs as well 

as the Adelaide Hills. These events are 

free for Members to attend (sponsored 

by LEAP). A member of the Ethics 

& Practice team presents for half an 

hour (0.5 CPD Ethics unit) followed 

by the President talking to Members 

about current news and issues in 

the profession. Then it’s time for 

networking! 

• The annual Small Practice Conference 

in March each year is a great 

opportunity to get your CPD units 

followed by some great networking. 

The 2018 conference was held at the 

Glenelg Golf Club. 

• The monthly Coffee Breaks (first 

Wednesday of the month) in the city, 

northern and western suburbs as well 

as the Adelaide Hills provides another 

opportunity to network in an informal 

and relaxed setting. 

• The Small Practice End of Financial 

Year Lunch and Christmas Networking 

events are always enjoyable occasions to 

network. 

Check out InBrief each week for more 

information about these events. 

Small Practice Committee member David 

Barnfield puts together a Small Practice 

Newsletter once or twice per year. It is 

always enjoyed by the Members – check 

out the website for past editions. 

If you are setting up your own practice 

or running a practice, or are considering 

doing so, visit the Society’s website for 

resources such as the Small Practice Kit 

and Practice Management Directory. 

The Society is in the process of 

upgrading the Locum Service database. 

Keep an eye out in InBrief for further 

updates. 

Don’t forget, Members can use a meeting 

room at the Society for up to an hour for 

free! Give us a call if you need to meet a 

client in the city and we will help you out 

(subject to availability). 

Support Services are available to all 

Members. Don’t hesitate to use the 

Society’s services if you are needing some 

support. All details are on the website (and 

see page 8 for more details). 

Committee Members and the Society’s 

Ethics & Practice team are always happy 

to hear from any Members of the Society 

who have any questions or need guidance. 

Details are again on the website. B 

MEMBERS ON THE MOVE 

SAMUEL PITMAN 

Commercial & Legal are proud to 

announce two recent promotions for 

their senior staff, Samuel Pitman and 

Cianan Hehir. Playing a significant role 

within C&L’s growing Property Team, 

both Sam and Cianan have been promoted 

to the role of Senior Associate, giving 

CIANAN HEHIR 

the firm a further boost of seniority in its 

property expertise. 

Sam brings to his role property related 

banking and finance, construction, 

hotels, commercial drafting, and litigation 

advisory. 

Cianan brings experience on property 

sales and acquisition, due diligence, leasing 

and related advisory. 

Principal Partner, Elias Farah, said he 

expects these new found achievements 

and responsibilities to further bolster the 

Property Team at C&L in its continued 

growth. 

18 


Depression and anxiety – 

a bio-psychosocial problem 

WELLBEING AND RESILIENCE COMMITTEE 

In 2017, the World Health Organisation 

declared depression as the leading 

cause of disability worldwide. We know 

depression and anxiety is a major issue in 

the Australian legal profession. 

According to WHO 1 : 

• Depression is a common mental 

disorder which results from a complex 

interaction of social, psychological and 

biological factors. 

• Depression is the leading cause of 

disability worldwide. 

• More women are affected by depression 

than men. 

• At its worst, depression can lead to 

suicide. 

• There are effective treatments for 

depression. 

• Effective community prevention 

programmes have been shown to 

reduce depression. 

Research points to psychological and 

social factors as playing a significant role 

in mental health and wellbeing, in addition 

to biological causes. There is a natural 

and basic need to feel that you belong 

and are connected to others. Factors 

include whether you have a community, 

meaningful values and meaningful 

work, and whether you feel that you are 

respected and have a secure future. 

Consider these factors in the context of 

our legal community. It becomes readily 

apparent why some of these factors are 

likely to have a material impact on the 

current state of wellbeing of so many 

lawyers. First, underlying the potential 

for isolation and disconnection is about 

three quarters of the lawyers practising 

in this State are either sole practitioners 

or at firms with less than five lawyers. 

Second, the volume and nature of legal 

work available must play a significant role - 

constant worry of what’s in the “pipeline” 

of work flow; the tensions between 

aspirations as to the type of lawyer you 

wanted to be and the reality of the legal 

work available to you. These issues apply 

across the spectrum of legal practices, big 

and small. 

It is in this context that the Wellbeing 

and Resilience Committee of the Law 

Society is effectively mandated to search 

for ways to reduce and prevent the 

prevalence of depression and anxiety in 

the legal profession in South Australia. 

Inroads have been made. There 

does seem to be, at least, broad 

acknowledgment within the legal 

profession of an unacceptably high 

prevalence of depression and anxiety. The 

courage and dignity of some lawyers and 

members of the judiciary in speaking out 

about their personal mental health issues 

has advanced the cause significantly. 

But this is not enough, nor can a small 

group of lawyers and a dedicated HR 

professional on a Committee address 

all of the psychosocial factors in play 

in our legal community on their own. 

The stigma is ever present, as is the fear 

of damaging future career prospects 

by disclosing mental health issues. Real 

and sustainable change requires effective 

community programmes. The problem and the 

commitment to change must be owned by 

all members of the legal community. 

Over the next month, the Committee will 

be finalising some key objectives, initiatives 

and desired outcomes for the next 12 

months. You are invited to contribute to 

this process by emailing your thoughts 

and ideas to the Committee CRP at 

Gianna.DiStefano@lawsocietysa.asn.au 

by 30 April 2018. 

Endnotes 

1 Depression Fact Sheet Updated February 2017, 

http://www.who.int/mediacentre/factsheets/ 

fs369/en/ 

thorough analysis, 

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The scientific examination of handwriting, 

documents and fingerprints 

Phone: +61 2 9453 3033 

examined@forensicdocument.com.au 

www.forensicdocument.com.au 

SINCE 1984

MEDIATION 

Pro Bono Mediation Information 

Service making a difference in 

the Magistrates Court 

MARGARET CASTLES, SOLICITOR AND MEDIATOR, ADELAIDE LAW SCHOOL DIRECTOR OF 

CLINICAL LEGAL EDUCATION, AND RUTH BEACH, BARRISTER AND SOLICITOR, MEDIATOR 

At the Magistrates Court Legal 

Advice Service 1 students regularly 

advise clients to consider mediation as an 

alternative to litigation, and are as regularly 

asked “What’s that?”. 

Lawyers, judges and law students are 

often keen advocates of mediation – 

anything to avoid the uncertainty, distress, 

cost and disappointment of litigation. 

Mediation offers parties the chance to fully 

discuss and explore their dispute, with 

each other, face to face, with the guidance 

of a neutral third party. Lawyers often 

recommend mediation to their clients, but 

parties representing themselves, especially 

in the minor civil jurisdiction, often have 

no idea that they can even talk to the other 

side, let alone sit down and try to work out 

the dispute. 

With 24 years’ experience in litigation 

and dispute resolution, Adelaide lawyer 

and mediator Ruth Beach decided to 

address this gap in understanding at a 

grass roots level – by providing people 

with information and advice about how 

mediation works, at the very moment 

when people are receptive and interested 

– when they go to court for the first 

directions hearing in a minor civil claim. 

Two years ago, with the support of 

Deputy Chief Magistrate Dr Andrew 

Cannon, Ruth set up the Mediation 

Information Service 2 . A dozen qualified 

mediators volunteer to take turns attending 

the general civil list in the Magistrates 

Court each Monday and Tuesday to advise 

and inform parties of options other than 

going to trial. Sometimes they help people 

towards an agreement and sometimes 

if time permits they can offer a short 

mediation session. All of this is done pro 

bono, with mediators offering their time 

and expertise at no charge. Being available 

in court means that Magistrates or court 

staff can direct people who want to try to 

20 THE BULLETIN April 2018 

sort out their dispute to the mediator on 

the spot. 

“The Magistrates Court has actively encouraged 

ADR including mediation and court expert 

appraisal since it established its own rules in 

1992. This service helps parties understand 

that leaving their dispute to someone else to 

decide for them is often not the best option.” – 

DCM, Dr Andrew Cannon 

Mediation is cheaper, quicker, more 

humanistic, and importantly, it offers 

parties the chance to agitate issues that no 

court will be interested in and which are 

often the real issues in dispute. Litigants 

are often good problem solvers, and with 

the assistance of a mediator, outcomes 

are usually better, quicker, and more 

satisfactory for both parties. Cases often 

have underlying issues, and if these can 

be discussed in mediation, the parties will 

often settle. The Mediation Information 

Service helps people to understand the 

limits of litigation, and the possibility of 

sorting the case out themselves. 

The Magistrates Court Legal Advice 

Service, which operates on Mondays, 

Tuesdays and Wednesdays at the Court, 

took over the administration and 

management of this service in 2017. 

Students have prepared handouts to parties 

about mediation, they organise the rosters 

and communicate with mediators and 

the Court. Each Monday and Tuesday 

students attend with the mediator, and 

can assist with documents, writing up 

agreements, etc. Law students, Milly 

Livingstone and Rachel Phillips, devised 

all of the documentation and processes in 

early 2017. Law student Amanda Hughes 

took over the running of this program 

for second semester, and continues to 

do an outstanding job. As these students 

graduate and move into the next stage 

of their careers, others will take over the 

management of the Service. 

“MCLAS was keen to take on the 

administration of this service. Already situated 

in the Magistrates Court to assist clients with 

case preparation, legal advice, and drafting 

support, we see daily the benefit for clients 

being able to sit down and try to work out a 

solution together. Plus it provides a unique 

learning experience for our students, who can 

experience first hand the process and challenges 

of mediation with an experienced professional.” 

– Margaret Castles, Director, Clinical 

Legal Education Program 

The Magistrates Court already operates 

a busy mediation service, with mediations 

offered at no cost for minor civil and 

low cost general claims. Free Mediation 

is also available in minor civil cases 

before proceedings are issued. This 

pro bono initiative supplements those 

existing services to provide even greater 

opportunities for parties to learn about 

mediation and sort out their disputes. 

So far, the service has been busy, and is 

making a real difference. Magistrates are 

very positive about the service, and it’s 

great to see a grass roots initiative like this 

have an impact in the Courts in resolving 

disputes before trial. Not to mention the 

number of people who will go away with a 

better understanding of what mediation is, 

and how to access it. 

“I think it is a privilege to be able to make 

a pro bono contribution so that people don’t 

have to wait for a court outcome. Providing 

access to processes and facilitators through 

the MIS assists people to become their own 

decision makers, which is an important part of 

any dispute.” – Bev Clarke, solicitor and 

mediator, who has been involved in MIS 

from the start

MEDIATION 

Legal advice clinic students Steven Ellis (front) and Evangelos Toskas 

Thanks go to all involved in quietly 

setting up and running the service and 

getting on with the job. Solicitors and 

mediators who are currently involved in 

this service include Bev Clarke, Bevan 

Bates, Bronwyn Adams, Bronwyn 

Gallacher, Matthew Young, Penny 

McCann, Ruth Beach, Margaret Castles, 

Jane McGrath, Kerri Flanagan and Erica 

Panagakos. If you are interested in joining 

in this initiative, or have other inquiries 

please contact: Margaret.castles@adelaide. 

edu.au or Ruth@ruthbeach.com.au. 

Information about the Service, and 

about the availability of mediation in 

the Magistrates Court generally, can be 

found at the MCLAS website: 

https://law.adelaide.edu.au/free-legalclinics/magistrates-court-legal-advice 

and the CAA website http://www. 

courts.sa.gov.au/ RepresentYourself/ 

CivilClaims/Pages/Mediation.aspx B 

Mashal Masood (left), Katherine Nowakowski and Maddison Briggs discuss a file 

Endnotes 

1 MCLAS is a free legal advice service operated 

by Adelaide Law School as part of the Clinical 

Legal Education program. Students supervised 

by a solicitor provide legal advice and support to 

litigants in the minor civil claims jurisdiction. 

2 This service commenced following a couple 

years of trials utilising other options, ultimately 

settling on the current Service. 

Share our belief 

that caring for people at 

the end of their lives is an 

honour and a privilege. 

Be inspired – 

donate today 

Visit marypotter.org.au 

or call Cathy Murphy on 

08 8239 0119 to find out more.


Standing up for the profession 

ANNA FINIZIO, POLICY COORDINATOR 

Last year’s President Tony Rossi gives evidence at the 

Federal inquiry into the Centrelink “robo-debt” system 

As the voice of the legal profession in 

South Australia, the Society continues 

to expand its reach and influence for the 

benefit of the legal profession and the 

wider community. 

The Society’s voice is powerful and highly 

regarded by the Government, opposition 

parties, the courts and other bodies, who 

frequently seek the Society’s views in 

relation to policy and legislative matters. 

The Society seeks to actively influence 

policy and legislation in a number of ways 

including submissions, appearances before 

Parliamentary Inquiries and through the 

media. 

The Society’s submissions continue to 

play an important role in shaping legislation 

in South Australia. We are uniquely placed 

through our Special Interest Committees to 

consider and comment upon the practical 

application of proposed reforms and their 

potential impact on both the profession 

and the community. 

A submission of the Society carries 

considerable weight in the Parliament. This 

is evident by the frequency of references 

to the Society’s submissions during 

Parliamentary debate; in some cases, 

read out in their entirety into Hansard. 

The Society through its submissions and 

advocacy work, provides a mechanism 

for legislative scrutiny and Government 

accountability. Its views are highly valued 

by Members of Parliament. 

Increasingly in recent times, consultation 

concerning legislation that seeks to subvert 

fundamental principles of criminal justice, 

as well as legislation dealing with the most 


vulnerable members of our community, 

has been rushed and inadequate. The 

Society has mobilised quickly to express its 

concerns to Members of Parliament, who 

themselves often have had insufficient 

time to properly consider the proposed 

legislation. 

In 2017, the Society was instrumental 

in the defeat of the Statutes Amendment 

(Recidivist and Repeat Offenders) Bill 2017 (SA) 

in the Legislative Council. The Bill sought 

to extend the provisions of the Sentencing 

Act 1988 (SA) so that the Attorney General 

could apply for a serious repeat offender, 

including a youth offender, to be detained 

in prison beyond the completion of the 

offender’s head sentence. The Society 

strongly opposed the Bill, particularly its 

provisions relating to young offenders who 

are still in the early stages of development, 

and for whom rehabilitation should be the 

primary objective in sentencing. 

The Society also works closely with 

other stakeholders in its advocacy 

activities. Recently it formed an alliance 

with stakeholders such as the Australian 

Medical Association (SA Branch) and 

the South Australian Council of Social 

Service, in response to child protection 

reform. The alliance through its 

advocacy work, including a joint press 

conference and meetings with Members 

of Parliament, was successful in ensuring 

a number of amendments were made 

to improve the Children and Young People 

(Safety) Act 2017 (SA). 

The Society is regularly invited to 

appear before Parliamentary Inquiries. 

Special Interest Committees provide not only an 

opportunity for Members to network with peers 

in their practice area, but influence policy in a 

tangible and meaningful way. 

Recent appearances have been in relation 

to the Return to Work Scheme, the 

Administration of South Australian 

Prisons, the Review of the Lifetime 

Support Scheme and the Decriminalisation 

of Sex Work. In addition, the Society 

is often contacted directly by the 

Government and opposition parties to 

discuss and inform proposed legislation. 

As a Constituent Body of the Law 

Council of Australia, the Society ensures 

that the voice of the South Australian legal 

profession is heard and has a platform 

in respect to national matters, including 

Family Law, national security and human 

rights. 

The Society is proactive in its advocacy 

and lobbying in relation to access to 

justice, including Federal and State 

funding for Legal Aid and Community 

Legal Centres. We use platforms such 

as the recent State Election to lobby 

political parties and advocate for key 

issues including funding for the Courts 

and a new Courts building. The Society 

maintains an active voice in matters of 

importance to both the profession and the 

community, including Compulsory Third 

Party Insurance and the privatisation of 

the services of the Lands Titles Office. 

Underpinning the strength of the 

Society’s advocacy work are its Special 

Interest Committees. The advocacy work 

of the Society would not be possible 

without the hard work and expertise of 

the Members of our Committees, who 

are often called on to consider complex 

matters in short time frames. Committees 

form the heart of the advocacy work of 

the Society, and work closely with staff to 

inform submissions and media enquiries. 

Special Interest Committees provide not 

only an opportunity for Members to 

network with peers in their practice area, 

but influence policy in a tangible and 

meaningful way. B


Protecting practitioners against risk 

GEOFF THOMAS, DIRECTOR, LAW CLAIMS 

The Legal Practitioners Act 1981 (SA) 

(the Act) mandates that all practitioners 

in private practice in SA be insured for 

their professional liabilities. The Act 

further provides that the Society may, with 

the approval of the Attorney General, 

establish a Scheme to provide Professional 

Indemnity Insurance. The Society has 

established such a Scheme, known as 

the SA Legal Practitioners Professional 

Indemnity Insurance Scheme (Scheme). 

That scheme provides cover in accordance 

with the Minimum Standards contained in 

the Uniform Law. The level of cover is $2 

million inclusive of defence fees per claim. 

The Scheme is comprised of the 

Professional Indemnity Fund (PIF), which 

is a mutual fund maintained by the Society 

from part of the contributions paid by 

practitioners. That fund is primarily used 

to provide a deductable with respect to any 

claims payment, to the extent of meeting 

the first $400,000 of any claim. Beyond 

that, the Scheme is insured by various 

insurers, who are thus responsible to make 

any payments between the deductable and 

the limit of indemnity. 

The maintenance by the Society of the 

PIF has therefore been of great assistance 

to SA Practitioners over the years. It enables 

the Society in its annual negotiations with 

Underwriters to provide detailed data 

about Claims Statistics over a long period 

and demonstrate strong claims handling 

ability. This also provides a good bargaining 

position as to the terms of cover for the 

Scheme and as to the level of premiums 

charged by Underwriters. Consequently 

the Society has been able to maintain 

a stable level of contributions payable 

by practitioners for their professional 

indemnity insurance for many years, and 

they have been significantly lower than 

would be the case if this insurance had to 

be obtained via the commercial market. 

Law Claims administers the Scheme. 

Its primary role is therefore to manage 

claims made against practitioners. Law 

Claims takes a proactive approach to 

claims management, and endeavours to 

resolve meritorious claims at the earliest 

opportunity, but to strongly defend claims 

without merit. Law Claims has a small team 

of in-house solicitors for that purpose, but 

instructs a panel of external solicitors to 

represent practitioners where proceedings 

are issued. 

The Society also provides an extensive 

risk management programme with a view 

to assisting practitioners to minimise the 

incidence of claims against them. That 

programme has largely compromised 

education type sessions in practice areas 

where the statistics maintained by Law 

Claims show that there are particular claims 

prone risks or there are emerging risks. 

“Riskwatch” and “Risk Alert” articles are 

also prepared and published on a regular 

basis in order to keep the profession 

appraised of topical issues. 

The Society is currently investigating 

an expansion of the risk management 

programme and is currently investigating 

some of the programmes that have 

been developed in another Australian 

jurisdiction. This could include the 

provision to practitioners of materials in 

specific practice areas and visits by Risk 

Management staff and experts to Law 

Practices to assist in their office and file 

management procedures. B 

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The role of the Women 

Lawyers Committee 

SHELLEY O’CONNELL, CHAIR, WOMEN LAWYERS COMMITTEE AND SENIOR ASSOCIATE, CLELANDS LAWYERS 

Whilst the numbers of women 

practising law in SA have increased 

markedly in recent years to the point 

of exceeding 50% of the profession, 

female practitioners remain grossly under 

represented at senior levels and at the 

bar, with far higher rates of attrition than 

their male counterparts. The gender pay 

gap and reports of discrimination and 

harassment are unfortunately still issues 

which loom large in the legal profession. 

The Women Lawyers Committee (WLC), 

as a long standing and valued Committee 

of the Law Society of SA, aims to 

promote equality for women in the legal 

profession and the wider community, to 

increase awareness of the contribution 

which women make to the practice and 

development of law, and to encourage 

greater understanding and support for the 

legal rights of all women. 

We liaise closely with the Women 

Lawyers Association of SA (WLASA) 

and Australian Women Lawyers Ltd with 

regard to issues facing women in the 

profession nationally. We also liaise closely 

with the Equal Opportunity Committee 

of the Law Council of Australia, and the 

Women at the Bar Committee. 

The WLC plays a role in assisting with 

social events and networking, such as the 

highly successful annual event the Hon 

Margaret Nyland AM Long Lunch (at 

which recently appointed Hon Justice Judy 

Hughes will be speaking this year). This is 

run with WLASA and previous speakers 

include the Hon Michael Kirby AC CMG, 

Professor Gillian Triggs, the Hon Justice 

Michael David, Fiona McLeod SC, and 

of course the Hon Margaret Nyland AM 

herself. 

In addition, less visible but perhaps more 

importantly, the WLC plays a significant 

part in contributing to submissions made 

on behalf of the LSSA for legislative 

reform on matters affecting women in the 

profession and the wider community, such 

as most recently: 

1. Births, Deaths and Marriages (Gender 

Identity) Amendment Bill 2016; 

2. Select Committee on the Statutes 

Amendment (Decriminalisation of Sex 

Law Society President Tim Mellor meeting with Women Lawyers Committee members 

(from left): Leah Marrone, Shelley O’Connell, Caitlin Hartvigsen-Power and Kymberley 

Lawrence 

Work) Bill (including 2 WLC members 

attending the Select Committee to give 

evidence on behalf of the LSSA, and 

later contacted for further assistance by 

the Select Committee Chair); 

3. Senate Standing Committee inquiry in 

relation to the Civil Law and Justice 

Legislation Amendment Bill 2017; 

4. Parliamentary Inquiry into a Better 

Family Law System to support and 

protect those affected by family 

violence; 

5. State and Territory Responses to 

Domestic and Family Violence to the 

Law Council; 

6. State Framework for Altruistic 

Surrogacy; 

7. Revision of the LPEAC Rules and 

how they impact Mandatory CPD for 

practitioners taking parental leave; 

8. The Family Law Amendment (Family 

Violence and Other Measures) Bill 

2017 and the Family Law Amendment 

(Parenting Management Hearings) 

Bill 2017; 

9. Review of Equal Opportunity Act; and 

10. Submission in relation to pay 

transparency. 

The WLC also successfully delivered 

the Law Society’s inaugural Women 

Lawyers Mentoring Program in 2017. 

The Program was developed as a practical 

response to the 2014 National Attrition 

and Re-engagement Study (NARS) and as 

anticipated, it has contributed significantly 

to the personal and professional 

development of participants. It is sure 

to be an ongoing programme which will 

benefit the whole profession. 

Other issues on the WLC agenda at the 

current time and into the future include 

the following: 

• Reaching out to regional/isolated 

female practitioners; 

• Promotion of Unconscious Bias 

training; 

• Promotion of the Equitable Briefing 

Policy which has been adopted by the 

LSSA and many other organisations/ 

firms nationally; 

• Addressing the Gender Pay Gap – we 

previously made a submission regarding 

the Fair Work Amendment (Gender Pay 

Gap) Bill 2016; and 

• Addressing sexual harassment in the 

profession. 

We enjoy strong support from the 

Judiciary and senior members of the 

profession and thank them for their 

continued and valuable involvement. 

If you have any suggestions for issues to 

be addressed by the WLC, or would like to 

be involved in our important work, please 

contact me. B 

24 THE BULLETIN April 2018

Challenging cancer 

Challenging Cancer 

LINCOLN SIZE, CHIEF EXECUTIVE, CANCER COUNCIL SA 

In Australia, one person is diagnosed with Since the first event in 1993, our morning 

cancer every five minutes – the length of teas have raised more than $190million 

an average tea break. Next time you take a nationally which has gone towards Cancer 

break to make a cup of tea, remember that Council’s research, prevention, advocacy 

someone, somewhere in Australia is hearing and support programs across the country. 

those three devastating words - you have Hosting a morning tea is a chance for 

cancer. 

your workplace to get together and make a 

For 25 years, Cancer Council’s Australia’s difference. Grab your colleagues and host 

Biggest Morning Tea has brought together an event in your office, or alternatively if 

millions of Australians to have a cuppa for you don’t have time to host an event, visit 

a cause and support those who are told this the website and donate directly to Cancer 

life changing news. 

Council SA online. 

The money raised through events such as 

Australia’s Biggest Morning Tea enables us 

to continue to make a difference to the lives 

of those diagnosed with cancer in our state. 

Through investment in research and 

prevention programs we have seen the fiveyear 

survival rate for all cancers increase 

to 68% - just 20 years ago is was as low as 

48%. 

Through fundraising support, we are able 

to constantly work towards new research 

breakthroughs, with Cancer Council 

SA recently funding 35 new research 

projects through the Beat Cancer Project. 

And we are able to continue to support 

South Australians every day through our 

accommodation, counselling services and 

Cancer Council 13 11 20. 

These achievements simply would not be 

possible without the money raised through 

events such as Australia’s Biggest Morning 

Tea. 

Register to host an event in your 

workplace today and help us continue to 

strive towards a cancer free future, every 

minute, every hour, every day. 

For more information on Australia’s 

Biggest Morning Tea, to register or to 

donate visit www.biggestmorningtea.com.au 

or phone 1300 65 65 85.

EVENTS 

Another record broken at 

Law Society Forum 

Last year’s attendance record was 

broken at this year’s Law Society 

Forum, with 759 delegates taking 

advantage of the wall-to-wall CPD 

sessions at Adelaide Convention Centre on 

15-16 February. 

This marks the third consecutive year of 

record attendances, cementing the event 

as the premier education and professional 

development event for lawyers. 

The most popular session, perhaps 

unsurprisingly, was Elizabeth Williamson’s 

presentation on “Dealing with Difficult 

Clients”, with 226 attendees receiving 

handy tips to manage issues of conflict 

with clients. Ms Williamson is a counsellor, 

conflict consultant and mediator. 

Other particularly popular sessions 

included “Ethical Issues for Civil lawyers” 

by Jonathan Wells QC (135 attendees), and 

“The Art of Advocacy” by Ian Davidson 

and Deborah Lockhart (143 attendees). 

The Forum ran 30 sessions overall and 

several delegates were able to satisfy their 

yearly CPD requirements over the two 

days. 

The Law Society thanks the following 

sponsors for their support of the event. 

Platinum sponsor: LegalSuper 

Gold sponsor: TIMG 

Coffee Cart Sponsors: 

Stewart Title 

BankSA 

Silver sponsors: 

Matrix Solutions 

Officeselect 

MCCOA 

LEAP 

Royal Adelaide Hospital Research Fund 

Richard Nordin (left) and Benjamin 

Fernandes from LegalSuper 

It was a full house for Elizabeth Williamson’s 

presentation on dealing with difficult clients. 

Jonathan Wells QC lays out some ethical 

conundrums


MEMBERSHIP BENEFITS 

Society Members winners as 

Bank SA partnership extended 

The Society and Bank SA will 

celebrate its 25 th year in partnership 

in 2020, following the recent renewal of a 

sponsorship agreement between the two 

South Australian institutions. 

In what is one of the most enduring and 

stable member benefit partnerships in SA, 

the agreement ensures that Law Society 

Members will continue to enjoy exclusive 

benefits and privileges with Bank SA. 

Law Society Chief Executive Stephen 

Hodder said: “Our relationship with Bank 

SA is as strong as ever and we are delighted 

to be able to provide such great benefits to 

our Members through our partnership with 

such a proudly South Australian business.” 

Some of the benefits* Members receive 

include: 

• access to a discounted home loan and 

everyday banking package 

• the opportunity to borrow up to 90% 

of the value of your Owner Occupier 

Property with no mortgage insurance 

and no Advantage Package Home Loan 

fee for the first year of your home loan. 

The Advantage Package includes: 

ο $0 home loan establishment fee 

ο $0 monthly home loan administration 

fee 

ο A choice of credit cards with 

$0 annual card fee 

ο A Bank SA Complete Freedom 

transaction account with no monthly 

account-keeping fee 

Bank SA also runs regular information 

sessions for Society Members on topics 

such as Property Investment, Purchasing 

Your First Home, and Business Banking & 

Equipment Finance. 

There are a number of ways Law Society 

Members can make their money work 

better for them with Bank SA. In just 

one recent example, a Member contacted 

Bank SA Business Development Manager 

Jarrad Cooper to review her home loan and 

discuss benefits through her membership 

with the Society. She was paying 4.17% on 

her $327,000 home loan with another bank 

and was able to refinance to Bank SA in 

January to 3.64%(3.65% comparison rate). 

She is now saving $144 per month; that’s 

$1733 per year! This is a real life example 

TESTIMONIAL 

In November 2016, I engaged a major 

Adelaide brokerage firm to advise 

me on the purchase of my first block 

of land. Unfortunately, the broker 

mismanaged the purchase which 

resulted in settlement being significantly 

delayed and me feeling unsure of what 

was going wrong in the process. 

Settlement had been so delayed, I was 

at risk of losing the sale of this perfect 

piece of land. Fortuitously I ran into 

Jarrad Cooper from Bank SA at a Law 

Society event. After briefly explaining 

how I couldn’t get an answer from the 

broker as to the delay of the settlement, 

Jarrad stepped in. That evening, he 

made direct contact with me to confirm 

the status of the purchase and the 

next day was in contact with the major 

banks involved in the settlement. 

of how much can be saved on a relatively 

moderate loan amount. 

For more information about Bank SA’s 

home loan options for Law Society of SA 

Members, contact Business Development 

Manager Jarrad Cooper: 

M: 0466 497 303 

E: jarrad.cooper@banksa.com.au 

* Terms and conditions apply. 

The Society receives sponsorship money and 

commission on some products from Bank SA 

which is a division of Westpac Banking 

Corporation. 

Jarrad personally collected documents 

that had been held up at the broker’s 

solicitor’s office and escalated them 

with the bank. Processes that had been 

left languishing were attended to by 

Jarrad himself and as a result, the land 

settled a few days after our chance 

catch-up! 

It was a great relief to secure the 

block where I now will build my dream 

house. Jarrad has now provided me 

with a Premium Lender who has set up 

an Advantage Package (a Law Society 

Member benefit) and will save me a 

significant amount of money over the 

life of the loan. 

I look forward to banking with 

Bank SA through Jarrad and his 

team as I build my dream home! – 

Natalie Wade 


RISK WATCH 

Is video-conferencing putting you at risk? 

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS 

It was not that long ago that videoconferencing 

was a new and expensive 

technology which was only available “at 

the big end of town” or in the Courts. 

Now of course, with the advent of Skype 

(and similar programs) and the ubiquity of 

smart phones, it is now possible to conduct 

video meetings easily and cheaply. Whilst 

the use of such technology can be of great 

assistance there are some real risks and 

practitioners need to bear these risks in 

mind so that they can be minimised. 

From time to time the Society receives 

enquiries from practitioners about the use 

of video-conferencing in legal practice. 

Such enquiries have related to whether it 

can be used to witness documents, identify 

clients or give advice. 

Law Claims is of the view that the 

witnessing of a signature should never be 

done via video-conferencing. An obvious 

difficulty is that the witness cannot be 

sure that the document sent to them to 

sign is the same document they saw being 

signed on the screen. A more fundamental 

problem, however, is the usual requirement 

in any witness clause that the person 

executing the document did so “in the 

presence of” the witness. 

There is Canadian authority (First 

Canadian Title Company Ltd v The Law 

Society of British Columbia 2004 BCSC 

197) that the witnessing of documents 

via video-conferencing did not satisfy 

the requirements for a lawyer to witness 

documents as an officer under the British 

Columbia Land Title Act. Whilst there 

is no direct Australian authority on the 

matter, it is difficult to see that any Court 

would find this requirement of the witness 

being “in the presence of ” the person 

executing the document satisfied through a 

video-conference attendance. 

As always, the question of the proper 

identity of your client looms large – you 

need to be satisfied that you are advising 

the right person. Reaching this level of 

satisfaction via video-conferencing will 

obviously be much harder (if not almost 

impossible) if you have not met the client 

before. Dealing with clients via videoconferencing 

should therefore generally 


only be done when you know the client 

well enough to be sure they are who they 

say they are. 

Once you are satisfied as to your client’s 

identity it may be just as, if not more 

convenient to give advice or receive 

instructions via video-conferencing, rather 

than over the telephone. It will not be as 

good as a face to face meeting though, 

especially if you need to go through 

documents. 

Obviously, it is important to ensure that 

both you and your client can hear and see 

each other clearly and that the reception 

on both ends is clear and uninterrupted. 

It will also be important to know, and to 

remain apprised of at all times, whether 

there is anyone else in the room apart 

from your client who might influence 

them. It may not always be easy but it may 

be important to ensure that the client is 

alone, depending on the type of matter 

and advice to be given. 

Video-conferencing software will also 

generally have the ability to record the 

meeting for later reference which may be 

helpful, both for you and the client. A 

recording should however only be made 

with the consent of all parties. 

Consistent with our constant reminders 

to practitioners about cyber-security, the 

question of cyber-security as regards 

video-conferencing is also important. 

Video-conferencing equipment is 

extremely vulnerable to hackers. In the 

USA in 2012 a company specialising in 

cyber-security discovered 5,000 open 

conference rooms belonging to a range of 

businesses, including law firms, as a result 

of insecure video-conferencing systems. 

The company noted that businesses often 

invested large amounts of money in 

top quality video-conferencing facilities 

but set them up outside their computer 

firewalls, leaving the system open to attack. 

In the case of law firms the danger of 

inadvertent disclosure of confidential and 

privileged information is obvious. 

The dangers don’t stop there: even if 

your main office system is secure, lawyers 

working remotely (e.g. from home or 

in airports etc) via unsecured wireless 

networks are at risk. It may be that secure 

portable modems need to be employed. 

As has been noted before in these pages, 

technology can be of great benefit to legal 

practices, as long as the relevant risks are 

also borne in mind. 

VIDEO-CONFERENCING DO’S & DON’T’S 

• Never witness signatures via videoconferencing 

• Always take reasonable steps to 

properly identify your client 

• New clients should always be 

identified in person 

• Only give advice/take instructions if 

the audio and video reception is clear

YOUNG LAWYERS’ COMMITTEE 

What can the Young Lawyers’ 

Committee do for you? 

ERICA PANAGAKOS, BELPERIO CLARK & MELANIE TILMOUTH, TINDALL GASK BENTLEY 

(CO-CHAIRS OF THE YOUNG LAWYERS COMMITTEE) 

facebook.com/YLCSA 

The South Australian Young Lawyers’ 

Committee (YLC) is a special 

interest Committee of the Society and 

an integral part of a young or newly 

admitted practitioner’s transition to the 

legal profession. 

Formerly known as the “New Lawyers 

Committee”, the YLC represents the 

interests of not only practitioners who 

are under the age of 35 but also those 

practitioners who are in their first five 

years of legal practice, irrespective of their 

age. The Committee represents the largest 

cohort of practitioners in South Australia 

in addition to law students and graduates. 

The National Profile of Solicitors 2016 

report indicates that 31.1% of solicitors 

are aged 34 years or under, and 27.1% of 

solicitors had been admitted five years or 

less. 

The Committee’s main purpose is to 

promote the interests of young lawyers 

to the Society and the wider profession, 

and to further the development of young 

lawyers by organising educational, social, 

wellbeing and networking events and 

initiatives. 

Membership of the committee reflects 

diversity in experience, practice areas 

and employer type, including country 

practice, private practice, government, 

and the Courts, amongst other sectors. 

The YLC considers its members having 

diverse backgrounds and experiences to 

be important, particularly where 9.4% 

of young lawyers work in the country or 

hold employment in rural areas. Four of 

the Committee’s current members work 

or have previously worked in country 

locations. 

One of the YLC’s core responsibilities 

has been the establishment of the 

‘Young Lawyers’ Support Group’, which 

comprises approximately 25 practitioners 

from various backgrounds who have 

agreed to assist, where possible, young 

lawyers who require independent guidance, 

particularly in relation to challenges faced 

by young lawyers in the early years of legal 

practice. 

The YLC also offers continuing 

professional development seminars 

throughout the year, often at no cost. 

The YLC’s yearly CPD program usually 

includes an ethics and wellbeing interactive 

seminar, and a performance review 

seminar to assist young lawyers to prepare 

for the often daunting performance review 

process that awaits them. 

The YLC offers regular events for new 

admittees to rub shoulders with leading 

members of the profession, including 

senior barristers and members of the 

judiciary. “Welcome to the Profession” 

events are an initiative of the YLC and 

are held twice a year at the Society. These 

events provide invaluable opportunities 

for newly-admitted lawyers to meet and 

network with members of the profession 

who they may not otherwise encounter 

or interact with, and introduce the new 

admittees to the benefits that come from 

holding membership with, or being 

involved in, the Society. 

One of the hallmarks of the work of 

the YLC is the hosting of social events 

to allow young lawyers to mingle with 

their peers, which is especially important 

for young lawyers who may be the only 

junior practitioners in their firms. The 

YLC encourages young lawyers to attend 

events such as the annual Golden Gavel 

competition, the Spring Gala and lawn 

bowls night. 

The YLC encourages young lawyers to attend 

events such as the annual Golden Gavel 

competition, the Spring Gala and lawn bowls night. 

Over the years, the YLC has also 

introduced events with the mental health 

and wellbeing of young and newly 

admitted practitioners in mind. The 

YLC holds a number of initiatives to 

help young lawyers achieve a healthy and 

balanced lifestyle including a mixed netball 

competition and an annual cooking class 

which focusses on quick, easy, healthy 

meals for young professionals. 

The YLC welcomes feedback and 

suggestions regarding initiatives that 

will assist young lawyers to develop and 

progress their careers. 

When you become a Member of the 

Society and are 35 years or less, in your 

first five years of practice or a law student, 

you will automatically become a Young 

Lawyer Member and receive invites to 

Social and Networking events, access to all 

the Young Lawyer wellbeing, education, 

advocacy and support services, as well as 

access to many other services, discounts 

and opportunities available through 

membership of the Society. 

Joining the Society is free for law 

students at any South Australian 

University, and is heavily discounted for 

newly admitted practitioners. 

If you have any questions or feedback 

regarding the YLC, or would like to 

become a Member of the Society, please 

contact Member and Community Services 

on 8229 0200 or mcs@lawsocietysa.asn.au. 

After a considerable amount of effort 

by the Committee, we are pleased to 

report that the inaugural Young Lawyers 

Wellbeing and Salary Survey was 

forwarded to members by the Society 

on 9 March 2018. The results of the 

survey will be considered by the Society 

and the Committee and the survey’s key 

outcomes will be published in due course 

for the profession’s consideration. We 

hope that the survey will thereafter be 

conducted on a regular basis to track the 

progression of young lawyers and to assist 

in their development in the early stages of 

their career. 



Mitch Simmons named Young Australian 

Migration Lawyer of the Year 

CHANEL MARTIN, RESOLVE DIVORCE LAWYERS; MEMBER, YOUNG LAWYERS COMMITTEE 

Mitch Simmons of Tern Visa and 

Migration Lawyers was awarded the 

John Gibson AM Award for the Young 

Australian Migration Lawyer of the Year at 

the Law Council of Australian Immigration 

Law Conference in February. 

The award is conducted annually by the 

Law Council’s Migration Law Committee 

and is presented to a young lawyer of less 

than five years’ post-admission experience. 

The award recognises excellence by 

young lawyers in the field of migration 

law in Australia or internationally. Past 

recipients of the Award have included 

Marina Brizar, an immigration lawyer who 

migrated with her family as a refugee in 

1995 and Besmellah Rezaee, who was 

born in Afghanistan and migrated to 

Australia in 2006 after living as a refugee 

as a child. Mitch was recognised for his 

tireless contribution to the practice of 

immigration law together with his probono 

work and involvement with the 

Refugee Advocacy Service of South 

Australia. 

In April 2017 Mitch joined long-term 

collaborator and fellow young lawyer Josh 

Calligeros in co-founding an immigration 

law practice in Adelaide after recognising 

a need in South Australia for the provision 

of specialised legal assistance focused 

on those who are facing an increasingly 

harsh, unpredictable and complex visa 

system. His approach to the practice of 

immigration law is challenging the norm. 

He is a flexible practitioner, full of fresh 

perspective, practicing the law differently. 

Mitch has particular expertise in 

complex family visa appeals, permanent 

and temporary protection visas and visa 

cancellations at all levels. Recently, Mitch 

was the instructing solicitor in Singh v 

Minister for Immigration and Border Protection 

(2017) FCA 1298, a successful appeal that 

established an important precedent for 

partner visa applications. Since mid-2016 

Mitch has also been involved in Burgess v 

Minister for Immigration and Border Protection 

[2018] FCA 69, a successful review of 


the Minister’s decision to cancel the 

applicant’s visa on character grounds. 

This case is among many challenging 

the Minister’s politicised “crack down” 

and personal cancellation of hundreds 

of visas of those suspected of having 

an “association” with outlaw motorcycle 

gangs without having to provide the visa 

holder or Court the evidence relied on in 

forming that suspicion. Mitch’s caseload 

is diverse, and in addition to assisting 

families, domestic violence victims, and 

asylum seekers, he also assists with visa 

issues in the commercial space, including 

advising South Australian businesses on 

managing staff shortages and foreign 

investors on compliance with investment 

visa frameworks. 

When asked how he manages client and 

colleague perceptions, given his young 

age and relatively short career, Mitch’s 

response was positive. He says most clients 

respond well to his flexible approach, 

and are less concerned about attending 

upon an experienced practitioner at a 

named firm. Clients want a practitioner 

who not only understands and can 

competently apply the law, but someone 

who can empathise with the difficult 

circumstances they find themselves in, 

and be conscious and flexible toward 

their needs. Immigration law is constantly 

changing, and in such dramatic ways. 

Mitch recognises his point of difference, 

in that he is a specialist in his field, and 

that in itself is what attracts clients to his 

practice. 

Mitch says that while it has been 

challenging going out on your own, while 

managing the commitment he has to 

his young family, his daughter Maeve in 

particular, the way in which he chooses to 

operate Tern, day to day, works for him, 

his clients, and his young family. 

Mitch is also a Board member at the 

Refugee Advocacy Service of South 

Australia (RASSA), a service providing 

pro bono migration assistance to asylum 

seekers in South Australia who are eligible 

Mitch Simmons with fellow RASSA board 

member Emily Rutherford 

to apply for a Temporary Protection Visa 

or a Safe Haven Enterprise Visa under the 

Federal Government’s “fast track” process. 

RASSA is the only community legal centre 

in South Australia providing this type of 

assistance. 

Mitch has been volunteering with RASSA 

since October 2015 and joined the Board 

in October 2016. He is also a member of 

the volunteer and training subcommittee 

which works to train and manage 

volunteer migration agents and lawyers. 

He is a mentor to law students and young 

practitioners interested in pursuing a career 

in immigration and refugee law. 

In addition to Mitch’s contribution to 

the law through RASSA, Mitch provides 

pro bono assistance to applicants in the 

Administrative Appeals Tribunal and 

Courts who are otherwise ineligible for 

or unable to access pro bono services in 

South Australia. 

Mitch is an outstanding winner of the 

inaugural award, and a young practitioner 

who has achieved much in a short time. In 

less than five years Mitch has established 

himself as a young migration and refugee 

lawyer of note, due to the quality of 

his work in South Australia and his 

commitment to his area of law. The Young 

Lawyers Committee together with the Law 

Society of South Australia congratulate 

Mitch on receipt of the award.


Young Lawyers’ Committee 

Profile: Tom Simpson 

Tom Simpson is a lawyer in the 

Civil Litigation Section of the 

Crown Solicitor’s Office, and 

was a member of the Young 

Lawyer’s Committee from 2011 

to 2017. From 2015 to 2017, Tom 

was also the Chair of the Young 

Lawyer’s Committee. Daniela 

Di Stefano sat down with Tom 

to reflect on his time with the 

Young Lawyers Committee, his 

early career highlights and what 

he is up to now. 

WHY DID YOU DECIDE TO JOIN THE YLC? 

I spent the last semester of my law 

degree overseas and then stayed overseas 

working for a few more years. Having been 

away for a number of years, I saw the YLC 

as a good opportunity to get to know new 

members of the profession. I considered it 

a positive way to re-engage and reconnect 

with young lawyers. 

TELL US MORE ABOUT YOUR OVERSEAS 

EXPERIENCE AND HOW THIS 

CONTRIBUTED TO YOUR LEGAL CAREER? 

I spent a semester in the Faculty of Law 

at the University of Poitiers in France, 

where I studied European law and human 

rights law. From there, I worked at a 

NGO whose main focus was lobbying the 

European Parliament and Commission on 

asylum policy. In this context, we would 

meet members of European Parliament, 

the United Nations and Amnesty 

International to talk about European 

policy and the law as it relates to asylum 

seekers. I then moved to London and 

represented asylum seekers for a period of 

time before returning to Adelaide. Having 

spent about three years focusing on a 

fairly narrow area of law, I wanted to get 

a broader experience, rather than limiting 

myself to just asylum and immigration law. 

It was a fascinating experience; I think it 

broadened my horizons and provided me 

with some foundation skills for general 

litigation practice. The CSO gives me the 

opportunity to continue this work pro 

bono through JusticeNet. 

HOW DO YOU THINK BEING ON THE 

YLC HELPED YOUR CAREER AND YOUR 

PROFESSIONAL DEVELOPMENT? 

At the Crown, there is an extensive 

in-house CPD program and lots of 

opportunities to meet people within the 

Office. However, we don’t necessarily 

attend outside events in the same way 

that a young lawyer at a private firm 

might. Being on the YLC gave me the 

opportunity to meet not just other 

members of the Committee but also other 

young lawyers who attended our events. 

I also got to meet senior members of the 

profession and members of the judiciary, 

as we often invited them to speak at our 

events. It was great to get to know our 

Committee’s patrons, Justice Grey and 

later Justice Stanley. 

WHAT IS YOUR MOST MEMORABLE YLC 

EVENT? 

When I was a relatively new member 

of the Committee, I arranged our annual 

Premium Breakfast event. I had invited 

Chief Justice French to come and speak 

at the breakfast. It was a great experience 

to sit down and eat bacon and eggs with 

the Chief Justice of the High Court. He 

spoke about his time as a young lawyer, 

and about what he saw as important skills 

to develop as a young lawyer. I introduced 

His Honour and thanked him afterwards, 

giving the Chief Justice a box of Haighs 

and a bottle of wine – a bit out of place at 

breakfast time! 

Other notable events include the Croquet 

night. It was always great to get out on the 

green and compare how horrible most of 

us were at attempting to play! 

WHAT DO YOU THINK ARE THE BIGGEST 

CHALLENGES FACING YOUNG LAWYERS 

TODAY? 

I think the transition from law graduate 

to young lawyer can be very challenging 

in Adelaide, nationally and internationally. 

There seem to be relatively few graduate 

Tom Simpson 

jobs, so getting that first experience can be 

challenging. 

When I was overseas, I spent a period 

of time after graduation and before my 

first job applying for multiple positions. 

My first job back in Adelaide was at the 

Crown. I was very fortunate to secure 

a position that has such varied and 

interesting work. 

WHY DID YOU LEAVE THE YLC AND WHAT 

HAVE YOU BEEN UP TO SINCE? 

I spent about six years on the YLC. I 

felt it was the right time to move on and 

the Committee was in excellent hands. 

Since leaving the committee, I have been 

focusing on my young family – I have a 

son who is now two-and-a-half years old. 

I haven’t left the Law Society completely 

– I am still on the Public Sector & In- 

House Lawyers Committee! 

WHERE DO YOU SEE YOURSELF IN FIVE 

YEARS? 

In five years I would like to be running 

more complex litigation for the State 

Government. I am involved in a range of 

litigation, but with a focus on complex 

and commercial litigation. There are 

excellent opportunities in the Crown to 

take on really interesting work and I’ve 

found that in my time at the Crown I have 

been exposed to very interesting matters. 

As I have become more experienced, I 

have been getting more responsibility in 

those complex mattes and hope for that 

increasing responsibility to continue. 

The Young Lawyers’ Committee would like 

to thank Tom for all of his hard work and 

contributions over the years. 


TAX FILES 

Aggregation of land for land tax: 

disregarding minor interests 

ANDREW SHAW, SHAW LAWYERS 

nvisible, I feel like I’m invisible, you 

“Itreat me like I’m not really there, and 

you don’t really care…” (Alison Moyet, 

“Invisible” (1984)) 

A recent decision of the Supreme Court 

of South Australia is a timely reminder of 

the anti-avoidance provisions in section 

13A of the Land Tax Act 1936 (S.A.) that 

allow the Commissioner to disregard 

minority interests in land for land tax 

purposes: see ACN 068 691 092 Pty Ltd v 

Commissioner of State Taxation (S.A.) [2017] 

SASC 195. 

BACKGROUND 

Land tax is imposed on all land in South 

Australia, subject to certain exceptions and 

exemptions. The “owner” of land is liable 

for the land tax. Land tax is imposed on 

the owner for each financial year based on 

the circumstances existing at midnight on 

30 June in the preceding financial year. 1 

Land tax is calculated on the aggregate 

site value of all land owned by the same 

“owner” (known as the “aggregation 

principle”). 2 The aggregation principle 

has a significant impact on the amount of 

land tax chargeable, because land tax is 

calculated on a sliding scale after applying 

a tax-free threshold ($353,000). If land is 

aggregated, only one tax-free threshold 

applies. The taxing rate increases as the 

taxable value of all land owned by the 

same “owner” increases. 

A mechanism commonly employed 

to avoid aggregation (at least until 30 

June 2008) was for different entities to 

hold minority interests in each property 

(typically 1% - 10%), thereby creating 

separate “ownerships” for land tax 

purposes. 

Example: Blackacre is owned by Trumpco 

Pty Ltd (as to 99%) and Donald (as to 1%). 

Whiteacre is owned by Trumpco Pty Ltd (as to 

99%) and Melania (as to 1%). Ownership of 

each property is therefore different, so they are 


separately assessed for land tax. The aggregation 

principle does not apply. Each property is entitled 

to its own tax-free threshold. 

COMMENCEMENT OF SECTION 13A 

Section 13A is an anti-avoidance 

provision. It commenced at midnight on 

30 June 2008. It is titled “Commissioner may 

determine that minor interest is to be disregarded”. 

The purpose of section 13A was 

explained by the Supreme Court in Kyren v 

Commissioner of State Taxation [2013] SASC 

58 as follows: “The Act imposes a progressive 

tax on the aggregation of land held in common 

ownership. Aggregation can be circumvented by 

the creation of minor interests which, because of 

their small size, offer no threat to the management 

of the land by the predominant owner and are 

relatively inexpensive to create. The manifest 

purpose of s 13A of the Act is to prevent the 

evasion of the aggregation provision by creating 

interests in land that are less than a majority 

interest and which are created for the purpose of 

reduction of land tax”. 3 

Section 13A introduced two qualifications 

to the “different ownerships” rules: 

1. Minority interest of 5% or less is 

automatically disregarded 

If a person’s interest in land is 5% or 

less (prescribed interest), that interest is 

automatically disregarded for land tax 

purposes unless the Commissioner is 

satisfied “that there is no doubt that the interest 

was created solely for a purpose, or entirely for 

purposes, unrelated to reducing the amount of 

land tax payable in respect of the land, or any 

other piece of land… ” 4 

If the prescribed interest is disregarded, 

the land is then aggregated with other land 

owned by the co-owner. This is automatic: 

it does not require any decision by the 

Commissioner. 

Example: Donald’s 1% ownership of 

Blackacre, and Melania’s 1% ownership of 

Whiteacre, are automatically disregarded. 

Trumpco is deemed to be the sole owner of 

both Blackacre and Whiteacre. Blackacre and 

Whiteacre are aggregated for land tax (together 

with any other land of which Trumpco is the sole 

owner, or deemed to be the sole owner as a result 

of disregarding other minority interests). 

2. Minority interest of more than 5% 

but less than 50% may be disregarded 

If a person’s interest in land exceeds 

5% but is less than 50%, the interest will 

be disregarded only if the Commissioner 

forms the opinion “that the purpose, or 1 of 

the purposes, for the creation of the interest was to 

reduce the amount of land tax payable in respect 

of the land, or any other piece of land”. 5 

A minority interest may be created 

for many purposes. The fact that one 

purpose is to reduce land tax is sufficient 

to disregard the interest, even if it was the 

least influential purpose. 

INFERENCES AND PURPOSE FOR CREATION 

OF INTERESTS 

In the ACN 068 691 092 Pty Ltd case, 

the Commissioner had disregarded 

minority interests of 10% created in six 

properties in June 2010. This resulted in 

the properties being aggregated, because 

one entity (the taxpayer) was thereby taken 

to be the owner of all six properties. 

The Commissioner’s case was a 

circumstantial one. It was necessary to 

consider whether an inference could 

be drawn that reduction of land tax 

was a purpose for creation of the 10% 

interests based on the objective facts and 

circumstances. This required consideration 

of each item of relevant evidence, 

whether pointing in favour of or against 

the inference, and weighing of all of the 

evidence together. 6 

The Court drew a number of inferences 

that reduction of land tax was a purpose 

for the creation of the 10% interests. 

These included: the taxpayer’s awareness

TAX FILES 

of s.13A in June 2010 and the advantages 

of minority interests above 5%; the timing 

of the transfers (they were lodged for 

registration on 30 June 2010); the variety 

of minority interest holders; a lack of 

commonality of ownership; the size of 

minority interests transferred (10% - rather 

than a higher percentage such as 25% or 

40% which might suggest other reasons); 

and the similarity/pattern of transactions 

since 1998 for land tax purposes. 7 

The Court concluded that the 

overwhelming inference and substantial 

purpose of the transfers was to reduce the 

amount of land tax payable on land owned 

by the taxpayer company. 8 

In Kyren, the Court had referred to 

similar grounds for forming an opinion 

that the predominant purpose of the 

relevant transactions was to reduce land 

tax: namely, timing of the conveyances; 

the size of the interests conveyed; the 

selection of land in which the interests 

were conveyed; and conveyances of 

similarly small interests in other land held 

by related entities. 9 

TAKE HOME MESSAGES 

• RevenueSA gathers data from the 

Lands Titles Office about transfers of 

freehold interests in land. It is clear that 

RevenueSA’s practice is to investigate 

transfers wherever a transferee acquires 

a minority interest. Taxpayers should 

expect that transferring a minority 

interest in land will attract a “please 

explain” letter from RevenueSA. 

• It appears that RevenueSA is also 

reviewing minority interests created 

prior to 1 July 2008, even if there has 

been no transfer of any interest in the 

land since that time. A minority interest 

may be disregarded regardless of when 

it was created, including an interest 

created before the commencement of 

section 13A. 10 

• If the Commissioner disregards a 

prescribed interest under section 13A(3) 

(a prescribed interest that exceeds 5% 

but is less than 50%), then the interest 

is taken to have been disregarded from 

the date on which the interest was 

created (which may be before the date 

of the Commissioner’s decision, and 

before the commencement of section 

13A). 11 This is subject to the general 

five year limitation on reassessments. 12 

My own experience is that RevenueSA’s 

usual practice is not to “backdate” the 

disregarding of a minority interest, 

but only to assess onwards from the 

financial year in which the interest is 

disregarded. 

• One (perhaps) unexpected consequence 

of section 13A is that the disregarding 

of a minority interest may cause a 

residential property, which is otherwise 

exempt from land tax as a principal 

place of residence, to lose that 

exemption. The principal residence 

exemption requires that the land is 

owned by a natural person (whether 

or not he or she is the sole owner of 

the land). 13 If a natural person owns a 

minority interest in his or her principal 

residence, and the remainder is owned 

by a company, the disregarding of the 

minority interest under section 13A will 

cause the exemption to fail (because the 

natural person is no longer taken to be 

an “owner”). 

• The ACN 068 691 092 Pty Ltd case 

makes clear that challenging a section 

13A decision comes down to inferences 

drawn from the facts and circumstances. 

The burden of proof is upon the 

owner. The evidence must be capable of 

satisfying the Commissioner or a Court 

that a minority interest was created 

for purposes other than reduction 

of land tax. An obvious example is 

a syndicate where several investors 

pool their funds to buy an investment 

property. Their proportionate interests 

may be different. At least some will 

have minority interests. My view is that 

the Commissioner is unlikely to apply 

s.13A in such cases, assuming evidence 

is adduced that the purpose for creating 

minority interests was to reflect their 

respective contributions. 

• Section 13A applies to a “prescribed 

interest” (i.e. a minority interest). By 

definition, section 13A cannot apply in 

two scenarios: 

ο first, if each land parcel is wholly 

owned by a different entity (Blackco 

Pty Ltd owns Blackacre, Whiteco Pty 

Ltd owns Whiteacre, Brownco Pty 

Ltd owns Brownacre); or 

ο second, if two taxpayers own exactly 

50% each. Section 13A applies only 

if an interest is less than 50%. The 

Commissioner has no power to 

disregard an interest of 50% or more. 

Ownership of land in any other 

proportions will almost certainly invite 

enquiry. 

Tax Files is contributed by members of 

the Taxation Committee of the Business 

Law Section of the Law Council of 

Australia. B 

Endnotes 

1 Land Tax Act 1936 (S.A.), ss.4 and 14. 

2 ss.2 and 8B. 

3 At [12] - [13]. The Court noted the 

“widespread” practice of landlords to create 

minor interests in their multiple holdings to 

avoid the aggregation provisions. 

4 ss.13A(2) and (5). 

5 ss.13A(3) and (5). 

6 At [94] – [96]. 

7 At [97] – [109]. 

8 At [130]. 

9 Kyren, at [90]. 

10 s.13A(9)(b). 

11 s.13A(3a). 

12 s.10(4) of the Taxation Administration Act 1996 

(S.A.). 

13 s.5(10) of the Land Tax Act. 


ABORIGINAL JUSTICE 

Major report makes key access 

to justice recommendations to 

reduce Indigenous incarceration 

MATTHEW CORRIGAN, PRINCIPAL LEGAL OFFICER, AUSTRALIAN LAW REFORM COMMISSION 

The Australian Law Reform 

Commission (ALRC) report on the 

incarceration rates of Aboriginal and 

Torres Strait Islander peoples was tabled 

in Parliament on 28 March. The ALRC 

made 35 recommendations. A key area 

for reform is improving access to justice 

for Aboriginal and Torres Strait Islander 

people. 

Aboriginal and Torres Strait Islander 

adults continue to be incarcerated at an 

alarming rate across Australia. In South 

Australia, Aboriginal and Torres Strait 

Islander adults make up 19% of the prison 

population despite only making up around 

2% of the population. Over-representation 

is both a persistent and growing problem— 


incarceration rates increased 41% between 

2006 and 2016, and the gap between 

Aboriginal and Torres Strait Islander and 

non-Indigenous imprisonment rates over 

that decade widened. 

This is not a new problem. In 1991, the 

Royal Commission into Aboriginal Deaths 

in Custody (RCIADIC) found that the 

Aboriginal population was grossly overrepresented 

in custody. The RCIADIC 

looked at indicators of disadvantage 

that contributed to this disproportionate 

representation, including the economic 

position of Aboriginal people, the health 

situation, their housing requirements, their 

access or non-access to an economic base 

including land and employment, their 

situation in relation to education; the part 

played by alcohol and other drugs—and its 

effects. 1 

Over the 26 years since the RCIADIC, 

multiple resources have been dedicated 

to remedying the factors identified 

by the RCIADIC and to reducing 

the disproportionate incarceration of 



peoples. 

SUBSTANTIVE EQUALITY 

The ALRC’s Inquiry involved 

fundamental questions about equality 

before the law and equality in treatment 

by the law. In this Inquiry, the ALRC 

focused on achieving substantive, not just 

formal, equality. Formal equality suggests 

that all people should be treated the same 

regardless of their differences. Substantive 

equality is “premised on the basis that 

rights, entitlements, opportunities 

and access are not equally distributed 

throughout society and that a one size fits 

all approach will not achieve equality”. 2 

The ALRC did not propose a “parallel 

system” of justice for Aboriginal and 

Torres Strait Islander people. However, 

the ALRC recognises, as Brennan 

J observed in Gerhardy v Brown, that 

formal equality may be “an engine 

of oppression destructive of human 

dignity if the law entrenches inequalities 

“in the political, economic, social, 

cultural or any other field of public 

life”. 3 Achieving substantive and not 

formal equality before the law includes, 

for example, the consideration upon 

sentencing of the unique and systemic 

factors affecting Aboriginal and Torres 

Strait Islander offenders. It also includes 

not only consistency in the provision 

of sentence options and diversion and 

support programs across the country, 

but also ensuring that these are culturally 

appropriate. Achieving substantive 

equality also requires ensuring that 


people enjoy equal access to justice in 

policies, programs and services. 

ACCESS TO JUSTICE ISSUES 

ALRC recommendations to improve 

access to justice are focused on specific 

issues faced by Aboriginal and Torres 

Strait Islander people appearing as 

defendants before the criminal justice 

system. 

Communication barriers can be a 

significant issue. For many people from 

isolated Aboriginal and Torres Strait 

Islander communities, English may be a 

second or third language. Some Aboriginal 

and Torres Strait Islander people may 

find it difficult—if not impossible—to 

understand legal proceedings without 

access to an interpreter. Many jurisdictions 

with high proportions of remote 


populations such as Queensland, South 

Australia, and Western Australia currently 

operate without state-funded dedicated 

interpreter services for Aboriginal 

and Torres Strait Islander people. The 

ALRC recommended that state and 

territory governments work with relevant 


organisations to establish interpreter 

services within the criminal justice system 

where needed. 

Alienation and disconnection from 

mainstream court processes can limit 

access to justice for Aboriginal and Torres 

Strait Islander people. Specialist Aboriginal 

and Torres Strait Islander sentencing 

courts aim to be inclusive and culturally 

appropriate and to increase active 

participation through the inclusion of 

key community members, such as Elders, 

and the use of plain English to ensure 

that processes and requirements imposed 

by the court are well understood by the 

person appearing. Such courts “emphasise

CPD Events 

For further details and to register: 

www.lawsocietysa.asn.au 

cpd@lawsocietysa.asn.au 

All sessions that are being held at LSSA, 

will be held at Level 10 Terrace Towers, 

178 North Terrace Adelaide 

the importance of giving Aboriginal 

people a meaningful say in the decisions 

that affect their everyday lives”. The 

ALRC recommends that state and territory 

governments establish specialist Aboriginal 

and Torres Strait Islander sentencing 

courts in areas and regions where needed. 

The ALRC Report also highlights the 

urgent need for adequate resourcing 

of legal assistance providers. Access to 

legal representation and advice is one 

of the cornerstones of addressing the 

disproportionate rates of Aboriginal and 

Torres Strait Islander incarceration. In the 

absence of legal representation and advice, 

a defendant may be incarcerated for a 

range of reasons, including sentencing 

following an inappropriate guilty plea, a 

lack of awareness of available defences 

or pleas in mitigation. Submissions to 

the inquiry argued strongly that access to 

justice fundamentally requires sufficient, 

sustainable and ongoing funding for legal 

assistance providers. 

FITNESS TO STAND TRIAL REGIMES 

High rates of cognitive impairment and 

mental illness have been observed in the 

Australian general prison population. For 

example, in NSW, people with a mental 

illness or cognitive impairment were 

found to be 3 to 9 times more likely to 

be in prison than the general population. 4 

This over-representation is particularly 

pronounced for Aboriginal and Torres 

Strait Islander prisoners with research 

finding that Aboriginal and Torres Strait 

Islander people with mental illness and 

cognitive impairment are “significantly 

more likely to have experienced earlier and 

more frequent contact with the criminal 

justice system”. 5 

Where cognitive impairment or mental 

illness is acute, the issue of a person’s 

fitness to stand trial may be raised. If 

found unfit to stand trial, in jurisdictions 

without fixed terms, a person may face a 

particularly stark access to justice issue— 

the prospect of indefinite detention or 

detention that far exceeds the maximum 

sentence for the offence. These issues are 

best addressed by reforms which provide 

both for a fixed term of detention and 

regular periodic reviews while the person 

is in custody. 

CONCLUSION 

The ALRC considers that the 

implementation of the recommendations 

in its Report will: 

• reduce the disproportionate rate of 

incarceration of Aboriginal and Torres 

Strait Islander people; 

• improve access to justice; and 

• improve community safety. 

The ALRC Report, Pathways to Justice– 

Inquiry into the Incarceration Rate of Aboriginal 

and Torres Strait Islander People, and full 

list of recommendations is available at 

www.alrc.gov.au/publications. 

Endnotes 

1 Commonwealth, Royal Commission into 

Aboriginal Deaths in Custody, National Report 

(1991) vol 1, [1.3.6]. 

2 Australian Human Rights Commission, The 

Declaration Dialogue Series: Paper No 5—Equality 

and Non-Discrimination (2013) 8. 

3 Gerhardy v Brown (1985) 159 CLR 70, 129. 

4 Ruth McCausland et al, ‘People with Mental 

Health Disorders and Cognitive Impairment 

in the Criminal Justice System: Cost-Benefit 

Analysis of Early Support and Diversion’ 

(UNSW, PwC, August 2013) 3. 

5 Eileen Baldry et al, A Predictable and Preventable 

Path: Aboriginal People with Mental and Cognitive 

Disabilities in the Criminal Justice System (University 

of New South Wales, 2015) 10. 

Drafting Affidavits 

2 May 2018 

1.30pm – 5.00pm 3 Units * 

Drafting Effective Pleadings 


9.00am – 12.30pm 3 Units * 

Trusts Demystified 


9.00am – 12.30pm 3 Units * 

Advocacy Workshop 


2.15pm – 5.15pm 3 Units * 

Advocacy Workshop 


2.15pm – 5.15pm 3 Units * 

Workers Compensation Law – Latest 

Developments with the RTW and 

SAET 


8.30am – 1.15pm 4.5 Units * 

*Total CPD Units are accurate at time of 

printing and should be taken as a guide only. 

HAVE AN IDEA FOR A FUTURE 

SEMINAR? 

We invite practitioners to tell us what 

seminar they would like to see conducted 

next. Email us at 

cpd@lawsocietysa.asn.au with your ideas. 


FEATURE 

A SUMMARY OF RECOMMENDATIONS FROM THE ALRC REPORT ON INCARCERATION 

RATES OF ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE 

Justice Reinvestment 

Commonwealth, state and territory 

governments should provide support 

for the establishment of an independent 

justice reinvestment body to promote 

the reinvestment of resources from the 

criminal justice system to community-led, 

place-based initiatives that address the 

drivers of crime and incarceration, and to 

provide expertise on the implementation 

of justice reinvestment. The justice 

reinvestment body should be overseen 

by a board with Aboriginal and Torres 

Strait Islander leadership. 


governments should support justice 

reinvestment trials initiated in partnership 

with Aboriginal and Torres Strait Islander 

communities 

Bail 

State and territory bail laws should be 

amended to include standalone provisions 

that require bail authorities to consider 

any issues that arise due to a person’s 

Aboriginality, including cultural background, 

ties to family and place, and cultural 

obligations. These would particularly 

facilitate release on bail with effective 

conditions for Aboriginal and Torres Strait 

Islander people who are accused of lowlevel 

offending. 

Sentencing and Aboriginality 

Sentencing legislation should provide 

that, when sentencing Aboriginal and 

Torres Strait Islander offenders, courts 

take into account unique systemic and 

background factors affecting Aboriginal 

and Torres Strait Islander peoples. 

State and territory governments, in 

partnership with relevant Aboriginal and 

Torres Strait Islander organisations and 

communities, should develop options for 

the presentation of information about 

unique systemic and background factors 

that have an impact on Aboriginal and 

Torres Strait Islander peoples in the 

courts of summary jurisdiction, including 

through Elders, community justice groups, 

community profiles and other means. 

Community-based Sentences 

State and territory governments 

should work with relevant Aboriginal and 


community organisations to improve 

access to community-based sentencing 

options for Aboriginal and Torres Strait 

Islander offenders. 

State and territory governments should 

implement community-based sentencing 

options that allow for the greatest flexibility 

in sentencing structure and the imposition 

of conditions to reduce reoffending. 

In the absence of the availability of 


appropriate community- based sentencing 

options, suspended sentences and short 

sentences should not be abolished. 

Mandatory Sentencing 


governments should repeal legislation 

imposing mandatory or presumptive 

terms of imprisonment upon conviction 

of an offender that has a disproportionate 

impact on Aboriginal and Torres Strait 

Islander peoples. 

Prison Programs and Parole 

State and territory corrective services 

agencies should develop prison programs 

with relevant Aboriginal and Torres 

Strait Islander organisations that address 

offending behaviours and/or prepare 

people for release. These programs should 

be made available to: 

• prisoners held on remand; 

• prisoners serving short sentences; and 

• female Aboriginal and Torres Strait 

Islander prisoners. 

Access to Justice 


work with relevant Aboriginal and Torres 

Strait Islander organisations to: 

• establish interpreter services within the 

criminal justice system where needed; 

and 

• monitor and evaluate their use. 

Where needed, state and territory 

governments should establish specialist 


sentencing courts. These courts 

should incorporate individualised case 

management, wraparound services, and 

be culturally competent, culturally safe and 

culturally appropriate. 


Women 

Programs and services delivered to 

female Aboriginal and Torres Strait 

Islander offenders within the criminal 

justice system - leading up to, during 

and post-incarceration - should take into 

account their particular needs so as to 

improve their chances of rehabilitation, 

reduce their likelihood of reoffending 

and decrease their involvement with the 

criminal justice system. 

Police engaging with Aboriginal 

and Torres Strait Islander people and 

communities should receive instruction in 

best practice for handling allegations and 

incidents of family violence. 

Fines and Driver Licences 


abolish provisions in fine enforcement 

statutes that provide for imprisonment in 

lieu of, or as a result of, unpaid fines. 

State and territory governments 

should work with relevant Aboriginal and 


community organisations to identify areas 

without services relevant to driver licensing 

and to provide those services, particularly 

in regional and remote communities. 


review the effect on Aboriginal and Torres 

Strait Islander peoples of statutory 

provisions that criminalise offensive 

language. 

Alcohol 

All initiatives to reduce the harmful 

effects of alcohol in Aboriginal and 

Torres Strait Islander communities should 

be developed with, and led by, these 

communities to meet their particular needs. 


governments should enable and provide 

support to Aboriginal and Torres Strait 

Islander communities that wish to address 

alcohol misuse to: 

• develop and implement local liquor 

accords; and/or 

• develop plans to prevent the sale of 

full strength alcohol or reduce the 

availability of particular alcohol ranges 

or products within their communities. 

Police Accountability 


governments should review police 

procedures and practices so that the 

law is enforced fairly, equally and without 

discrimination with respect to Aboriginal 

and Torres Strait Islander peoples. 


governments should introduce a statutory 

requirement for police to contact an 

Aboriginal and Torres Strait Islander legal 

service, or equivalent service, as soon 

as possible after an Aboriginal and Torres 

Strait Islander person is detained in 

custody for any reason. 

Child Protection and Adult Incarceration 

The Commonwealth Government should 

establish a national inquiry into child 

protection laws and processes affecting 

Aboriginal and Torres Strait Islander children. 

Criminal Justice Targets 

The Commonwealth Government, 

in consultation with state and territory 

governments, should develop national 

criminal justice targets. These should 

be developed in partnership with peak 


organisations, and should include specified 

targets by which to reduce the rate of: 

• incarceration of Aboriginal and Torres 

Strait Islander people; and 

• violence against Aboriginal and Torres 

Strait Islander people.

GET IN ON THE ACT 

Explaining the LPA’s show 

cause regime 

ROSALIND BURKE, DIRECTOR, ETHICS AND PRACTICE UNIT 

“Get in on the Act” is a regular 

column from the Law Society’s 

Ethics & Practice Unit which 

details practitioners’ statutory 

professional obligations and 

responsibilities 

Sweeping changes to the Legal Practitioners 

Act 1981 (Act) were implemented 

on 1 July, 2014. The introduction of 

requirements with respect to “show cause 

events” was one of those changes. 

Prior to July 2014, section 49 of the Act 

provided for the automatic suspension of 

a legal practitioner’s practising certificate 

on becoming bankrupt. The bankrupt 

practitioner would then be required to 

apply to the Supreme Court (Court) 

for permission to practise. The Court 

would then determine whether, under the 

circumstances, it was safe to allow the 

practitioner to continue practising and, 

if so, any conditions that might apply. 

The primary concern of the Court was to 

ensure the protection of the public. 

The introduction of the show cause 

regime in 2014 widened the circumstances 

in which practitioners must seek the 

Court’s consent to be able to continue 

to practice but permits the subject 

practitioner to continue to practise until an 

order is made to the contrary by the Court. 

The main concern of the Court remains 

the protection of the public. 

The current show cause regime, which is 

adopted from the Uniform Law, requires 

a practitioner who holds or is applying 

for a practising certificate and who has 

experienced a show cause event to notify 

the Court of the occurrence of the event 

and then show cause as to why they 

should be permitted to practise despite the 

occurrence of the event. 

Section 5 of the Act provides a detailed 

definition of what constitutes a show 

cause event for the purposes of Part 3 

Division 2B which includes becoming 

bankrupt, being served with notice of a 

creditor’s petition, and being convicted of 

a serious offence or a tax offence. 

A practitioner who has experienced a 

show cause event and who applies for a 

practising certificate is required to disclose 

the event and provide a statement to the 

Court (unless they have previously done 

so) as to why, despite the event, they are a 

fit and proper person to hold a practising 

certificate (see section 20AG of the Act). 

A practitioner who experiences a show 

cause event while holding a practising 

certificate is required to provide the Court 

with notice, within seven days, of the 

occurrence of the event and a statement, 

within 28 days, as to their fitness to 

practise (see section 20AH of the Act). 

Sections 20AG and 20AH also require 

the practitioner to serve copies of their 

20AG/AH statement and 20AH notice 

(if applicable) to the Law Society and the 

Legal Profession Conduct Commissioner 

(Commissioner) both of which are entitled 

to make submissions to the Court on the 

matter. 

Division 3 of Part 6 of the Supreme Court 

Civil Rules 2006 (encompassing rules 390 

to 393) details what is required for the 

purpose of a 20AG/AH statement and 

20AH notice in terms of content and 

format. 

The onus is on the practitioner to satisfy 

the Court that they are a fit and proper 

person to hold a practising certificate 

despite the show cause event. This may 

If, during the directions stage, the practitioner, the 

Society, the Commissioner and the Court all agree 

on an outcome, the matter will usually be finalised 

without the need for a formal hearing. 

require the practitioner to demonstrate 

that their circumstances permit them 

to be able to practise without risk to 

the public or that they will change their 

circumstances for that purpose. Issues 

such as the ability to act in the best interest 

of clients, the protection of trust money, 

disciplinary history, any relevant medical 

matters, and access to resources to ensure 

the quality, timeliness and competency 

of the legal services provide by the 

practitioner (such as the supervision by 

another practitioner) will all be important 

considerations for the Court. The Law 

Society and the Commissioner may assist 

the Court with its enquiries into these and 

other matters. 

The usual progress of such matters 

through the Court is as follows. On 

receipt of the initiating document from 

the practitioner the Registrar will allocate 

the matter to a single Judge who will then 

list it for directions. The Law Society 

and the Commissioner are informed and 

have a right of appearance (as well as to 

make written submissions). The subject 

practitioner is entitled to be represented 

throughout. 

If it does not consider that the 

practitioner has shown that they are fit to 

hold a practising certificate, the Court has 

the power to refuse to issue or renew, or 

may amend, suspend or cancel, a practising 

certificate (see section 20AI of the Act). 

If, during the directions stage, the 

practitioner, the Society, the Commissioner 

and the Court all agree on an outcome, the 

matter will usually be finalised without the 

need for a formal hearing. 

If the matter does not resolve at 

directions it will be listed for a formal 

hearing. 

If you have any questions about this 

article please contact the Ethics and 

Practice Unit on 8229 0200. If you need 

legal advice or support in relation to 

show cause proceedings please contact 

our support services co-ordinator, Annie 

MacRae, on 8229 0263 or by email at 

annie.macrae@lawsocietysa.asn.au. B 


EVENTS 

Beachside oasis plays host 

to country conference 

JOHN KYRIMIS, KYRIMIS LAWYERS 

The seaside town of Robe is one of 

the loveliest places in our State to 

spend a weekend in late summer. On 16-18 

February, 73 delegates from across the 

State, together with many of their partners, 

attended the Law Society’s Country 

Conference in Robe. As in previous years, 

there was a wide range of practitioners 

from many different backgrounds – young 

and old, city, suburban and country, large 

firms and small – in attendance together 

with a number of judicial officers. 

The Conference started with the Friday 

evening drinks and dinner at the Robe 

Bowling Club. With the South-Eastern 

weather gods smiling kindly on the 

conference, this was a great night for 

people to catch up with old friends, and 

make new friends, in a relaxed seaside 

setting, and with plenty of good food, 

wine and beer. 

The CPD part of the Conference 

commenced on the Saturday morning at 

the Tarooki Campsite, with Magistrate 

Maria Panagiotidis presenting on the topic 

“Advocacy in the Magistrates Court – A 

Few Thoughts from an Insider”. Her 

Honour gave frank advice and tips on how 

practitioners should present themselves 

and their client’s cases in Court, not the 

least of which was that it was always 

helpful in submissions for practitioners 

to “get to the point”. This was well 

demonstrated by the showing of a short 

clip from the movie “My Cousin Vinnie” 

which should be recommended viewing 

for all those who practice or wish to 

practice in the criminal jurisdiction. 

Julie Redman spoke to her paper 

“The Legal Implications of Registering 

a Relationship”, which relates to the 

Relationships Register Act 2016 (SA). 

Although it is unclear how many more 

relationships will be registered under that 

Act now that same sex marriage is a reality 

in Australia, there may well be a number 

of couples, either of the same or different 

genders, who may well choose to register 

their relationship under this Act as a less 

formal alternative to marriage. As Julie’s 


presentation showed, the implications of 

registering a relationship are significant 

across a number of fields including wills 

and estates as well as family law, and 

practitioners in those fields need to be 

aware of those implications for clients 

who are in, or may in the future enter into, 

such a relationship. 

After morning tea, Registrar Stephen 

Roder of the Supreme Court gave a short 

presentation on the updates to the Courts 

Administration Authority computer 

system that were occurring, including the 

introduction of “e-probate” and other 

online lodgement portals destined to come 

in to effect in both the civil and criminal 

jurisdictions. E-probate is planned to come 

into force later this year, and it will become 

compulsory. Likewise, online lodgement is 

expected to become the norm in the civil 

jurisdiction of the Magistrates Court by 

the end of this year. 

The next speaker was Chief Justice 

Chris Kourakis, who presented on 

“Disputing Testamentary Capacity in the 

21 st Century”. His Honour made the point 

that, while the test in Banks v. Goodfellow 

might well be from the 19 th century, and 

the body of knowledge of mental health 

conditions has developed substantially 

since then, it does still represent the 

law. His Honour spoke to more recent 

decisions applying that test in the modern 

age. His Honour gave a number of 

practical pieces of advice, including reiterating 

the need for practitioners taking 

instructions to make a will to have detailed 

notes of their instructions, which were 

vital in the event of a challenge. 

Further practical advice gleaned was 

that, in cases of doubt as to a client’s 

testamentary capacity, the solicitor 

should consider obtaining a report from 

a doctor, preferably the client’s treating 

gerontologist (if the client has one) or 

a gerontologist briefed with the client’s 

medical history or if that is not practical, 

at least the client’s treating GP, although 

it was noted that some GP’s reports are 

more helpful than others! 

Peter Westley (left), Sharon Holmes and 

Andrea Michaels 

Phil Westover (left), Wendy Hein, and 

Magistrate Panagiotidis 

Joel Grieger (left), Jonathan Eiford, Sarah 

O’Brien, and Michael van Dissel 

Martin Frayne SC was the next 

presenter. His topic was “Caveat Emptor 

v Misrepresentation and Remedies”. 

The presentation mainly centred on the 

applicability of section 16 of the Australian 

Consumer Law and its predecessors being 

sections 52 of the Trade Practices Act 

1974 (Cth) and section 56 of the Fair

EVENTS 

Trading Act 1987 (SA), which deal with 

misleading and deceptive conduct. In 

addition, the Australian Consumer Law and 

its predecessors contain further specific 

provisions about misrepresentations 

relating to land, goods or services. 

Understanding these provisions, and their 

effect, is essential to any lawyer being 

asked to advise a client on a property 

or commercial matter. Martin gave the 

particularly useful example of a purchaser 

of a house where the vendor had 

concealed salt damp in the walls before the 

contract was signed, and the damp did not 

become known to the purchaser until after 

settlement. 

After lunch, delegates had a free 

afternoon to explore and enjoy Robe 

and its surrounds. It being a warm sunny 

afternoon, delegates and partners spent 

their free time in different ways including 

at the beach, exploring the town and its 

shops, visiting the local micro-brewery and 

other attractions, or just relaxing. 

Dinner on Saturday night was at the 

Robe Golf Club. Delegates enjoyed a 

three course dinner, with the food being 

first class, and drinks flowing freely. 

Justice David Berman of the Family 

Court was the speaker for the evening, 

and he gave a light-hearted speech on a 

number of topics and also referring to 

the important professional responsibilities 

that practitioners have. The dinner and 

drinking went on late into the night and a 

good time was had by all. 

The CPD component of the Conference 

resumed on Sunday morning, with Enzo 

Belperio giving the first presentation, 

on the subject of “Insolvent Trading 

and Preferential Payments”. This is an 

area of law that can be quite complex, 

yet very relevant if your clients include 

small businesses and others who might 

have been suppliers to companies that 

have gone into liquidation. While the law 

can seem quite harsh in its application to 

trades-people or small businesses who 

simply want to get paid for goods supplied 

or work done, it is important to be across 

the issue and the steps one might try to 

take, hopefully before it is too late, to 

protect your client’s position. 

The next speaker was Pam McEwin, who 

spoke to her paper on “Spot the Ethical 

Solutions in Estate Administration”, with 

some assistance from Stephen Roder. 

Delegates were presented with a number 

of increasingly difficult situations that can 

apply in estate matters, particularly where 

there is a potential for conflicting interests 

between relatives and other beneficiaries 

of the deceased. Delegates were asked 

to provide their answers to each of the 

difficult scenarios with quite a tasty 

chocolate provided for correct answers. 

While Pam’s presentation was light-hearted 

in delivery, it did address a number of 

ethical dilemmas that unfortunately, all 

too often, an estate lawyer will face. This 

writer considers it one of the best ethics 

seminars he has attended in recent years. 

Following morning tea, John Doyle and 

Amanda Adamson from Law Claims gave 

an update as to the claims received in 

the last year. One essential part of their 

presentation was this: if you think you 

might have a claim made against you, 

contact Law Claims as quickly as possible! 

They may well be able to help fix the 

situation before it turns into a formal 

claim against you. 

It being a warm sunny afternoon, delegates and 

partners spent their free time in different ways 

including at the beach, exploring the town and its 

shops, visiting the local micro-brewery and other 

attractions, or just relaxing. 

Justice David Berman gave the final 

presentation, which was on “Family 

Law – The Latest & Greatest – A Review 

of Case Law (Unknown Unknowns)”. 

His Honour went through a number of 

judgements delivered in the last couple of 

years in the family law jurisdiction, relating 

to Binding Financial Agreements and their 

enforceability, property settlement and 

other issues. Knowing and understanding 

these developments should be essential for 

all those practising in family law. 

The formal part of the Conference 

then concluded with an address from 

the President of the Law Society, Tim 

Mellor, giving an update as to a number 

of issues that the Law Society was 

dealing with on behalf of its membership, 

before closure by Phil Westover, the 

Chair of the Country Practitioners 

Committee. Delegates enjoyed another 

lovely lunch at the Tarooki campsite 

before departing. A thoroughly good 

time was had by all. 

The Conference was an excellent 

opportunity to learn about a number of 

diverse legal topics, in a relaxed and social 

setting. The seven CPD points, including 

the one in ethics, were also a very good 

way to satisfy most of one’s annual 

requirements in the one weekend! 

Thanks should also be given to the 

Conference’s sponsors, Legal Super, 

LEAP and Stewart Title, as well as the 

staff of the Society who helped the 

Country Practitioners Committee organise 

the event and made sure everything ran 

smoothly. 

The next Country Practitioners 

Committee event will be the Country 

Update at McLaren Vale on 26 October, 

2018. 

If you would like a way to meet and 

mix with a wide range of professional 

colleagues, while getting most of your 

required CPD points in the one go, 

in a relaxed setting, then attending 

the Country Update or the Country 

Conference should really be high in your 

consideration. 


BOOKSHELF 

Edited by N Williams 

The Federation Press 2018 

HB $170 

KEY ISSUES IN PUBLIC LAW 

Abstract from Federation Press 

This collection of papers by some of 

Australia’s leading judges and practitioners 

focuses on issues that have received 

insufficient attention in the published 

literature. It begins with four Spigelman 

Orations, delivered to the Public Law Section 

of the NSW Bar: Justice Stephen Gageler 

on deference, Chief Justice James Allsop on 

values in public law, Justice Virginia Bell on 

judicial legitimacy and the limits of review, 

and Chief Justice Bathurst on the limits of 

judicial review of integrity bodies. Papers 

on lawyerly skills then follow: David Jackson 

QC, one of the finest appellate advocates 

of our generation, on appellate advocacy; 

and Neil Williams SC, Chloe Burnett and 

Surya Palaniappan on statutory construction. 

The final section is a collection of papers 

on critical but much neglected subjects: 

Justice Mark Leeming on constitutional 

aspects of Commonwealth and State 

application laws; Justin Gleeson SC and Anna 

Mitchelmore on Chapter II of the Australian 

Constitution; Bret Walker SC and David 

Hume on broadly framed powers; Kristina 

Stern SC and Matthew Sherman on review 

of findings of fact; and Tim Game SC 

and Julia Roy on unifying principles in 

administrative law. 

Contact Federation Press: 02 9552 2200 

info@federationpress.com.au 

www.federationpress.com.au 

Edited by M Scott Donald & Lisa 

Butler Beatty 

The Federation Press 2017 

HB $195.00 

THE EVOLVING ROLE OF TRUST IN SUPERANNUATION 

Abstract from Federation Press 

The Law Council of Australia has held 

an annual conference on the law of 

superannuation each year since 1990. Over 

the years papers have been delivered by some 

of Australia, Canada and the UK’s leading 

judges, legal practitioners and academics. 

The papers have in many cases laid 

the foundation for, and explained the 

consequences of, the successive rounds of 

regulatory reform seen in the Australian 

superannuation system. This book represents 

the first time that these seminal papers have 

been collected in the one place. As such it 

offers a unique perspective on the evolving 

conversation that has informed the regulatory 

scheme and shaped Australia’s superannuation 

system. 




By P George 

3 rd ed LexisNexis 2018 

PB $185.00 

DEFAMATION LAW IN AUSTRALIA 

Abstract from LexisNexis 

The law of defamation strikes a delicate 

balance between the rights of freedom of 

speech and protection of reputation. In 

Australia there is no general right to publish 

statements freely and without inhibition. 

Defamation Law in Australia is an essential 

reference work for not only legal practitioners, 

but also publishers, journalists and students of 

this area of law. 




GE Dal Pont & KF Mackie 

2 nd ed LexisNexis 2017 

HB $259.00 


LAW OF SUCCESSION 

Abstract from LexisNexis 

An authoritative commentary of Australian 

succession law focusing on theory behind 

relevant legal rules, counter-views and 

comparative analysis. 

Now in its second edition, Law of Succession 

is an authoritative commentary of Australian 

succession law. Written by experts in the field, 

the focus is on explaining the theory behind 

relevant legal rules as well as counter-views 

and comparative analysis. It takes a technical 

approach and is a valuable reference for 

practitioners dealing with practical succession 

issues. 

Contact LexisNexis: 1800 772 772 

customersupport@lexisnexis.com.au 

store.lexisnexis.com.au/store/au

GAZING IN THE GAZETTE 

3 February 2018 – 2 March 2018 

Acts Proclaimed 

Fines Enforcement and Debt Recovery Act 2017 

(No 71 of 2017) 

Commencement ss 3-47; 67-76; Sch 1, 

clauses 1-35: 30 April 2018 

Gazetted: 6 February 2018, 

No. 8 of 2018 

Land Agents (Registration of Property Managers 

and Other Matters) Amendment Act 2017 (No 

44 of 2017) 

Commencement ss5(2),(3),(4); 7; 9-12; 

17;18; 20; 21; 23: 1 February 2019 

Commencement remaining provisions: 

30 April 2018 



Sentencing Act 2017 (No 26 of 2017) 

Commencement: 30 April 2018 



Statutes Amendment (Attorney-General’s 

Portfolio No 3) Act 2017 (No 70 of 2017) 

Commencement ss5-7; 10-12; 

20-21; 31-38: 1 March 2018 

Commencement ss8-9: 1 July 2018 



Statutes Amendment (Explosives) Act 2017 

(No 62 of 2017) 

Commencement: 1 May 2018 



Statutes Amendment (Sentencing) Act 2017 

(No 53 of 2017) 

Commencement: 30 April 2018 



Children and Young People (Safety) Act 2017 

(No 25 of 2017) 

Commencement s163: 22 October 2018 



Criminal Assets Confiscation (Prescribed Drug 

Offenders) Amendment Act 2016 (No 37 of 

2016) 

Commencement: 10 August 2018 



Statutes Amendment (Drink and Drug Driving) 

Act 2017 (No 63 of 2017) 

Commencement ss11(2); 21(3); 25(5); 

25(6): 8 March 2018 

Commencement ss 6(1); 8 - 10; 11(1); 

13; 16(1); 17; 18; 19(1)-(3); 20; 21(1) 

and (2); 22 - 24; 25(2) - (4); 26 - 30; 31(1) 

and (4); 32: 24 April 2018 

Commencement remaining 

provisions: 22 February 2018 



REGULATIONS PROMULGATED (3 FEBRUARY 2018 – 2 MARCH 2018) 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS 

AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON. 

Statutes Amendment (Terror Suspect Detention) 

Act 2017 (No 69 of 2017) 

Commencement: 26 February 2018 



Acts Assented To 

Nil 

Appointments 

Master of the Supreme Court of South 

Australia on an auxiliary basis 

for a period commencing on 13 February 2018 

and expiring on 30 June 2018 

Mark Nicholas Rice 



Rules 

Magistrates Court (Civil) Rules 2013 

Amendment 20 



South Australian Employment Tribunal 

Rules 2018 

Amendment 1 



Magistrates Court Rules 1992 

Amendment 65 



REGULATION NAME REGULATION NO. DATE GAZETTED 

Criminal Law Consolidation Act 1935 16 of 2018 6 February 2018, Gazette No. 8 of 2018 

Transplantation and Anatomy Act 1983 17 of 2018 6 February 2018, Gazette No. 8 of 2018 

Subordinate Legislation Act 1978 18 of 2018 6 February 2018, Gazette No. 8 of 2018 

Electoral Act 1985 19 of 2018 6 February 2018, Gazette No. 8 of 2018 

Return to Work Act 2014 20 of 2018 6 February 2018, Gazette No. 8 of 2018 

South Australian Employment Tribunal Act 2014 21 of 2018 6 February 2018, Gazette No. 8 of 2018 


Fines Enforcement and Debt Recovery Act 2017 23 of 2018 6 February 2018, Gazette No. 8 of 2018 

Expiation of Offences Act 1996 24 of 2018 6 February 2018, Gazette No. 8 of 2018 

Sentencing Act 2017 25 of 2018 6 February 2018, Gazette No. 8 of 2018 


Land Agents Act 1994 27 of 2018 6 February 2018, Gazette No. 8 of 2018 

Labour Hire Licensing Act 2017 28 of 2018 6 February 2018, Gazette No. 8 of 2018 

Police Superannuation Act 1990 29 of 2018 13 February 2018, Gazette No. 9 of 2018 

Dangerous Substances Act 1979 30 of 2018 13 February 2018, Gazette No. 9 of 2018 

Development Act 1993 31 of 2018 13 February 2018, Gazette No. 9 of 2018 

Supreme Court Act 1935 32 of 2018 13 February 2018, Gazette No. 9 of 2018 

District Court Act 1991 33 of 2018 13 February 2018, Gazette No. 9 of 2018 

Magistrates Court Act 1991 34 of 2018 13 February 2018, Gazette No. 9 of 2018 

Youth Court Act 1993 35 of 2018 13 February 2018, Gazette No. 9 of 2018 

Development Act 1993 36 of 2018 13 February 2018, Gazette No. 9 of 2018 

Bail Act 1985 37 of 2018 13 February 2018, Gazette No. 9 of 2018 

Correctional Services Act 1982 38 of 2018 13 February 2018, Gazette No. 9 of 2018 

Criminal Law (High Risk Offenders) Act 2015 39 of 2018 13 February 2018, Gazette No. 9 of 2018 

Police Act 1998 40 of 2018 13 February 2018, Gazette No. 9 of 2018 

Young Offenders Act 1993 41 of 2018 13 February 2018, Gazette No. 9 of 2018 

Education Act 1972 42 of 2018 13 February 2018, Gazette No. 9 of 2018 

Local Government Act 1999 43 of 2018 13 February 2018, Gazette No. 9 of 2018 

Criminal Assets Confiscation Act 2005 44 of 2018 13 February 2018, Gazette No. 9 of 2018 

Children and Young People (Safety) Act 2017 45 of 2018 13 February 2018, Gazette No. 9 of 2018 

Road Traffic Act 1961 46 of 2018 13 February 2018, Gazette No. 9 of 2018 

Health Practitioner Regulation National Law (South Australia) Act 2010 47 of 2018 13 February 2018, Gazette No. 9 of 2018 

Health Practitioner Regulation National Law (South Australia) Act 2010 48 of 2018 13 February 2018, Gazette No. 9 of 2018 


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SUPER 

Government acts to make 

sure your super gets paid 

ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER 

The government is moving to 

close loopholes which have 

allowed unscrupulous employers 

to evade their superannuation 

obligations. 

To ensure unscrupulous employers do 

not continue to deliberately shortchange 

employees on their superannuation, 

the government has released draft 

legislation designed to protect workers’ 

super entitlements and strengthen the 

Superannuation Guarantee (SG) scheme. 

The draft laws, contained in the 

Treasury Laws Amendment (Taxation and 

Superannuation Guarantee Integrity Measures) 

Bill 2018, will improve both the reporting 

of superannuation obligations and the 

Australian Taxation Office’s (ATO) ability 

to obtain real-time information about an 

employer’s compliance by: 

• allowing the ATO, in cases where 

employers fail to comply with their SG 

obligations, to issue directions to pay 

unpaid SG and undertake SG education 

courses; 

• allowing the ATO to disclose more 

information about SG non-compliance 

to affected employees; 

• improving the operation of the ATO’s 

collection and compliance measures; 

• extending Single Touch Payroll to all 

employers; 

• facilitating more regular reporting by 

superannuation funds; 

• streamlining employee commencement 

processes; and 

• introducing criminal penalties for failure 

to comply with a direction to pay. 

Under the SG scheme, which was 

introduced in 1992, it is compulsory 

for employers to make superannuation 

contributions on behalf of their qualifying 

employees. Each quarter employers 

are required to pay a percentage of an 

employee’s ordinary time earnings to their 

super fund. Since 1 July, 2014, the minimum 

SG contribution has been 9.5 per cent. 

Despite these obligations, legislative 

loopholes have allowed certain employers 

to avoid complying with their obligations. 

However, the government has made it 

clear that, under the proposed changes, 

employers who continue to break the law 

will face serious consequences. 

In a 24 January, 2018 media release, 

the Minister for Revenue and Financial 

Services Kelly O’Dwyer said “There 

will now be serious consequences for 

employers who break the law. The ATO 

will have a suite of enforcement and 

collection tools, including strengthened 

arrangements for director penalty notices 

and security deposits for superannuation 

and other tax-related liabilities.” 

“And, in cases where employers defy 

directions to pay their superannuation 

guarantee liabilities, the ATO will be 

able for the first time to apply for courtordered 

penalties, including up to 12 

months imprisonment. To embed ongoing 

compliance the ATO will also have the 

ability to require employers to undertake 

training.” 1 

The latest move by the government 

follows the introduction last year of its 

Fair Work Amendment (Recovering Unpaid 

Superannuation) Bill 2017 which is aimed 

specifically at closing a loophole that allows 

employers to short-change employees who 

make salary sacrifice contributions to their 

super. 

At the time of writing this column, it 

is important to note that the Fair Work 

Amendment (Recovering Unpaid Superannuation) 

Bill 2017 is yet to be voted on in parliament 

and the draft Treasury Laws Amendment 

(Taxation and Superannuation Guarantee 

Integrity Measures) Bill 2018 is yet to be 

introduced to parliament. 

In December, 2016, Industry Super 

Australia and Cbus released research 

which conservatively estimated that “rogue 

employers are dodging compulsory 

superannuation payments to the tune 

of $3.6 billion a year (2013-2014).” 

The research also concluded that around 

2.4 million, almost one third, of Australian 

workers were missing out on some or all of 

their super entitlements. 2 

Employees who have concerns that their 

employer is not paying the required SG 

contributions are advised by the ATO to 

take the following steps: 

• Firstly, confirm if you are entitled to 

receive SG contributions. 

• If you are so entitled, calculate how 

much your employer should be paying. 

• Then, talk with your employer and 

ask them how often they are currently 

paying your super; into which fund and 

how much are they paying. 

• Cross-check this information with 

member statements from your super 

fund. 

• It is also a good idea to call your super 

fund and ask them to confirm whether 

your employer has paid your super 

contributions. 

• Create or use your existing myGov 

account to access online services which 

allow you to check how much super 

has been paid into your super fund, as 

well as details of all your super funds 

including any you have lost track of. 

• After having taken the steps listed above, 

if you still believe your employer is not 

paying enough (or any) super you can 

report your employer to the ATO. 3 

Employers who have concerns that 

they may not have fully satisfied their 

SG contribution responsibilities for their 

staff are advised to make immediate 

contact with the super fund/s to which 

they contribute. The super fund will be 

able to provide further information about 

employer SG responsibilities. 

Andrew Proebstl is chief executive of legalsuper, 

Australia’s super fund for the legal community. 

He can be contacted on ph 03 9602 0101 or via 

aproebstl@legalsuper.com.au. B 

Endnotes 

1 See http://kmo.ministers.treasury.gov.au/mediarelease/006-2018/ 

2 See https://www.cbussuper.com.au/content/ 

dam/cbus/files/news/media-releases/Unpaid- 

Super-Report-Dec-2016.pdf 

3 Employees can find more information on the 

ATO’s recommendations at https://www.ato. 

gov.au/Individuals/Super/Unpaid-super-fromyour-employer/ 


FAMILY LAW CASE NOTES 

Family Law Case Notes 

ROB GLADE-WRIGHT, THE FAMILY LAW BOOK 

PROPERTY – WIFE’S APPLICATION 

FILED ELECTRONICALLY AFTER 4.30PM 

ACCEPTED (DESPITE FLR 24.05(2)) AS 

FILED BEFORE HUSBAND’S DEATH HOURS 

LATER 

In Whooten & Frost (Deceased) [2017] 

FamCA 975 (29 November, 2017) the 

wife filed a property application when she 

learned that the husband (from whom 

she had been separated for two years) had 

been placed on life support after a farming 

accident. Her application – for an order 

that she be excused from particularising 

her final orders until the husband had 

made full and frank disclosure – was 

electronically filed at 7.40pm. The husband 

died at 11pm. 

His estate relied on FLR 24.05(2) (an 

electronic filing “after 4.30 pm according 

to legal time in the [ACT] is taken to have 

been received … on the next day when 

the … registry is open”) to argue that the 

wife could not apply after the husband’s 

death (22) and that her application needed 

amendment to claim some relief if it 

was to invoke jurisdiction ([44]). Cronin J 

disagreed (at [45]): 

“ … The jurisdiction … is enlivened 

by a party filing an application 

seeking a matrimonial cause. Did the 

wife’s application seek that the court 

exercise its jurisdiction in relation to 

‘proceedings between the parties to 

a marriage with respect to the[ir] 

property … ? Clumsily though the 

words may have been expressed, 

I accept that the wife invoked the 

jurisdiction seeking orders with respect 

to property. ( … )” 

The wife sought an order under FLR 

1.14 to extend time under the rules, the 

estate a decision that the rule “should 

not be applied because the rules cannot 

create a substantive right” ([47]). Cronin 

J, however (at [49]-[51]), cited the 

judgment of McHugh J in Gallo v Dawson 

[1990] HCA 30 who said that rules of 

court “cannot become instruments 

of injustice”. Applying Rules 1.14 and 

1.09 (“if a doubt exists in relation to … 

practice a court may make such order as 

it considers necessary”) it was held that 

the wife’s application should be treated 

as having been filed when it was filed 

electronically. 


PROPERTY – WHEN HEADS OF AGREEMENT 

AT A MEDIATION INVOLVING A THIRD 

PARTY TAKE EFFECT IS A QUESTION OF FACT 

In Thatcher & Thatcher & Ors [2017] 

FCCA 3008 (6 December, 2017) heads 

of agreement at a mediation between the 

husband, wife and their two sons related 

to the property case between husband and 

wife and a case by the sons against their 

parents in the Supreme Court of Victoria 

where they claimed an interest in a farming 

company. The sons agreed to pay the 

husband $800,000 and interest of 3.5 per 

cent p.a., the husband agreeing to transfer 

properties to the wife. After orders were 

made the husband refused to settle, arguing 

that he was entitled to interest since the 

mediation. 

Judge Riethmuller said (from [8]): 

“( … ) As the High Court … [said] in 

Masters v Cameron [1954] HCA 72 … [as 

to] heads of agreement … : 

a. The parties may intend to be bound 

immediately, although desiring to 

draw up their agreement in a more 

formal document at a later stage; or 

b. They intend to be bound 

immediately, but do not intend to 

have … [it] take effect until … a 

more formal agreement; or 

c. They may intend to postpone … 

contractual relations until a formal 

contract is … executed ( … Chesire 

& Fifoot Law of Contract … 10th ed, 

2012, 5.24). 

[9] … The fact that … [an] agreement 

is informal … does not preclude it 

from being immediately binding. ( … ) 

Ultimately … it is a matter for the Court 

to determine the parties’ intention … 

objective[ly] … having regard to the 

language used and their conduct. ( … ) 

[15] … [T]he heads of agreement could 

[not] be considered a binding financial 

agreement ( … ) 

[17] The land … was held in part by the 

wife, yet the payment was entirely to the 

husband. Without finalisation of the … 

[case] the wife was potentially required 

to transfer her interest … for the 

husband to receive $800,000 … without 

any certainty that the[ir] agreement … 

would become binding. 

[18] In these circumstances, I am not 

persuaded that the heads of agreement 

were … binding … until … the … 

orders were made … 

[29] … I am satisfied that the sons were 

ready, willing, and able to settle … and 

that … settlement did not proceed … 

because the husband sought … interest 

… prior to … the … orders … [thus] it 

is not appropriate that he be permitted 

to insist on interest … ” 

PROPERTY – PARTIES NOT IN A DE FACTO 

RELATIONSHIP DESPITE THEIR LENGTHY 

SEXUAL RELATIONSHIP AND TWO 

CHILDREN – ELIAS PRINCIPLE 

In Weldon & Levitt [2017] FCCA 3072 (11 

December, 2017) Judge Riley dismissed Mr 

Weldon’s property application, granting Ms 

Levitt a declaration that the parties did not 

have a de facto relationship and accepting 

her evidence that they were “boyfriend 

and girlfriend” ([3]) and that while they did 

have two children together they lived in 

the same house for less than one of the 16 

years they had known each other. 

The Court said (from [33]): 

“The respondent was unemployed and 

in receipt of … [benefits] from 2001 

until the present … She did not … tell 

Centrelink that she was in a de facto 

relationship. ( … ) 

[68] The applicant acknowledged … that 

the respondent alone bought Property B, 

Property C and Property A. … 

[73] The applicant exhibited … an 

application for an intervention order … 

by a police officer … [in] 2014 on behalf 

of [the] respondent … [which] said that 

… the … [parties] were in a de facto 

relationship for about 12 … years ( … ) 

[115] In … Elias … (1977) FLC 90- 

267 Goldstein J held that the parties 

were bound by their statements to 

governmental authorities. ( … ) 

[116] More recently, however, the Elias 

principle has fallen into disfavour. ( … ) 

[117] In Sinclair & Whittaker [[2013] 

FamCAFC 129 at [65]] the primary judge 

found that a de facto relationship existed, 

notwithstanding the applicant’s statements 

to governmental authorities and lenders 

that she was single. That finding was not 

disturbed on appeal. ( … )

FAMILY LAW CASE NOTES 

[120] The respondent’s child support 

application was … based on her claim 

that the … [parties] were not in a de 

facto relationship. ( … ) 

[126] … [T]he respondent’s statement 

in an intervention order application 

… that the applicant was her former 

intimate partner tends to go the other 

way … it supports the proposition 

that the applicant was merely her 

boyfriend. 

[127] The net effect … is that the 

court is required to look at all of the 

evidence, including statements to 

governmental authorities … and assess 

whether, in all the circumstances, the 

parties were a couple living together on 

a genuine domestic basis. ( … )” B 

London Succession Law Conference an 

‘academic & social success’ 

LORETTA POLSON, POLSON LEGAL 

The splendid Victorian décor of 

Mr Foggs Gin Parlour in London 

provided a backdrop as Alf Macolino 

welcomed delegates to his second 

Succession Law Conference in September 

last year. 

A punctual 9am the following day 

was promised and delivered with Steve 

Roder providing an entertaining lecture 

on the history of Wills. Queensland 

Counsel Caite Brewer and Richard 

Williams provided overviews of recent 

developments in respect of statutory 

Wills and Will construction. Justice 

Henry followed with a thought-provoking 

discussion on the limits of the parens 

patriae jurisdiction and the controversy 

and challenges in responding to an 

individual’s request for assisted death. 

Recently retired Justice Tom Gray 

QC also provided judicial insight as he 

reflected on his term as a Probate Judge. 

Peter Worrell provided salient advice 

regarding a solicitor’s duty in respect of 

Will preparation. As instructing solicitor in 

a recent High Court decision of Badenach, 

Peter is certainly qualified to do so! 

Other highlights included Scott 

Haye-Bartlem’s lively discussion on 

superannuation and its interface with 

estate planning and Thomas Cadd’s 

slideshow accompanying his thoughts on 

commorientes in the terrorist age. 

As well as an academic programme par 

excellence, the conference offered a refined 

social programme. Many delegates and 

accompanying persons enjoyed a rambling 

tour of London and its environs as we 

travelled to the sumptuous Cliveden House 

and enjoyed afternoon tea in seventeenth 

century splendour. Accompanying persons 

enjoyed an escorted visit to the Print 

Room of the British Museum whilst 

delegates listened to John White discussing 

executors’ duties under the gaze of 

portraits of learned Counsel (including Sir 

Robert Menzies) in the ambience of the 

Pension Room at Gray’s Inn. 

The conference was an academic and 

social success. We look forward to the next 

one Alf! B 

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Beq Adv17 LawSociety 88x124 husband and wife outlines.indd 1 

April 2018 THE BULLETIN 45 

17/05/2017 3:57 PM

CLASSIFIEDS 

VALUATIONS 

MATRIMONIAL 

DECEASED ESTATES 

INSURANCE 

TAX REALIGNMENT 

INSOLVENCY 

FURNITURE 

ANTIQUES, COLLECTIONS 

BUSINESS ASSETS 

MACHINERY 

MOTOR VEHICLES 

CARS, BOATS, PLANES 

CITY & COUNTRY 

ROGER KEARNS 

Ph: 08 8342 4445 

FAX: 08 8342 4446 

MOB: 0418 821 250 

E: auctions@senet.com.au 

Certifi ed Practising Valuer NO.346 

Auctioneers & Valuers Association 

of Australia 

Family Law - Melbourne 

Marita Bajinskis 

formerly of 

Howe Martin & Associates 

is a Principal at 

Blackwood Family Lawyers 

in Melbourne 

Marita is an Accredited Family 

Law Specialist and can assist with 

all family law matters including: 

• matrimonial and de facto 

• property settlements 

• superannuation 

• children’s issues 

3/224 Queen Street 

Melbourne VIC 3000 

T: 03 8672 5222 

Marita.Bajinskis@ 

blackwoodfamilylawyers.com.au 

www.blackwoodfamilylawyers.com.au 

CONSULTING 

ACTUARIES 

Brett & Watson 

P TY. LTD. 

t. +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

For professional actuarial 

advice on 

• economic loss 

• workers compensation 

• all superannuation issues 

Contact 

Geoff Keen or Bruce Watson 

Phone 08 8232 1333 

Fax 08 8232 1324 

Ground Floor 

157 Grenfell Street 

Adelaide SA 5000 

Andrew Hill Investigations 

Investigating: 

ABN 68 573 745 238 

• inappropriate workplace 

conduct including bullying 

• fraud 

• unprofessional conduct 

• probity 

Support services: 

• forensic computing analysis 

• transcription services 

• information sessions, particularly 

for HR practitioners on the 

investigative process 

PO Box 3626 

• policy development. 

NORWOOD SA 5067 

t. +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

Andrew Hill 

Andrew Hill 

Investigations 

Licensed Investigation Agents 

& Process Servers 

Servicing the Mid North, Yorke & 

Eyre Peninsula`s and Outback of 

South Australia with: 

• Process Serving 

• Property Lockouts 

• Investigations 

• Missing Persons 

OUTBACK BUSINESS SERVICES 

P.O. Box 591, 

PORT AUGUSTA. 5700 

P: 0418 838 807 

info@outbackbusinessservices.com.au 

LITIGATION ASSISTANCE 

FUND 

The Litigation Assistance Fund (LAF) is a 

non-profit charitable trust for which the 

Law Society acts as trustee. Since 1992 

it has provided funding assistance to 

approximately 1,500 civil claimants. 

LAF receives applications for funding 

assistance from solicitors on behalf of 

civil claimants seeking compensation/ 

damages who are unable to meet the 

fees and/or disbursements of prosecuting 

their claim. The applications are 

subjected to a means test and a merits 

test. Two different forms of funding exist – 

Disbursements Only Funding (DOF) and 

Full Funding. 

LAF funds itself by receiving a relatively 

small portion of the monetary proceeds 

(usually damages) achieved by the 

claimants whom it assists. Claimants who 

received DOF funding repay the amount 

received, plus an uplift of 100% on that 

amount. Claimants who received Full 

Funding repay the amount received, plus 

15% of their damages. This ensures LAF’s 

ability to continue to provide assistance 

to claimants. 

LAF recommends considering whether 

applying to LAF is the best course in the 

circumstances of the claim. There may be 

better methods of obtaining funding/ 

representation. For example, all Funding 

Agreements with LAF give LAF certain 

rights including that funding can be 

withdrawn and/or varied. 

For further information, please visit 

the Law Society’s website or contact 

Annie MacRae on 8229 0263. 

LawCare 

The LawCare Counselling 

Service is for members of 

the profession or members 

of their immediate family 

whose lives may be adversely 

affected by personal or 

professional problems. 

If you have a problem, speak 

to the LawCare counsellor Dr 

Jill before it overwhelms you. Dr 

Jill is a medical practitioner 

highly qualified to treat social 

and psychological problems. 

The Law Society is pleased to 

be able to cover the gap 

payments for two consultations 

with Dr Jill per patient per 

financial year. 

All information divulged to the 

LawCare counsellor is totally 

confidential. Participation by 

the legal practitioner or family 

member is voluntary. 

To contact Dr Jill 08 8110 5279 

8am-8pm, 7 days a week 

LawCare is a member service 

made possible by the generous 

support of Arthur J. Gallagher 

Business 

valuations 

Simple, clear, 

unbiased advice, 

without fear or 

favour. 

Hugh McPharlin FCA 

d +61 8 8139 1130 

m +61 419 841 780 

e hmcpharlin@nexiaem.com.au 

w nexiaem.com.au 

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46 THE BULLETIN April 2018

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